Article 400 Pre-Sentence Proceedings Flashcards
CPL 400.10
Select all correct statements:
(a) Before pronouncing sentence the court must hold a pre-sentence conference
(b) A defendant must be present at the pre-sentence conference
(c) One of the basic purposes of the pre-sentence conference is to resolve any discrepancies between the pre-sentence report and the defendant’s or prosecutor’s pre-sentence memorandum
(d) The court may conduct a summary hearing at the pre-sentence conference on any matter relevant to sentence and may take testimony under oath at such hearing.
Answers: (c) and (d)
Choices (c) and (d) are correct (CPL 400.10).
Choices (a) and (b) are incorrect because the defendant’s presence is not required unless directed by the court, and a pre-sentence conference is discretionary with the court.
CPL 400.10-4
Select the correct statement concerning a court’s authority to order compliance with stated conditions after conviction but before sentencing:
(a) A court’s authority in this regard exists only in imposing sentence
(b) A court may order compliance with any conditions it chooses, prior to sentencing
(c) A court may order compliance with certain conditions set forth by statute, prior to sentencing
(d) A court may not impose a sentence of imprisonment when it has previously, after conviction, ordered compliance with certain conditions set forth by statute.
Answer: (c)
Choice (c) is correct (CPL 400.10-4).
Choices (a), (b) and (d) are negated by CPL 400.10-4. A court shall take into consideration the defendant’s record of compliance with presentence conditions it has ordered, but this does not preclude a sentence of imprisonment.
CPL 400.15-7(a)
Select the correct answer.
At a hearing conducted to determine whether a defendant who stands convicted of a violent felony offense is to be sentenced as a second violent felony offender, the people:
(a) have the burden of proving by a preponderance of the evidence that the defendant has been subjected to a predicate violent felony conviction
(b) have the burden of proving beyond a reasonable doubt that the defendant has been subjected to a predicate violent felony conviction
(c) have the burden of proving by clear and convincing evidence that the defendant has been subjected to a predicate violent felony conviction
(d) must only establish a prima facie case that the defendant has been subjected to a predicate violent felony conviction.
Answer: (b)
Choice (b) is correct [CPL 400.15-7(a)]. The standard is proof beyond a reasonable doubt.
CPL 400.16
Select the correct answer.
The basis for a determination that a person is a persistent violent felony offender is conviction of a violent felony offense plus:
(a) four or more predicate violent felony convictions
(b) three or more predicate violent felony convictions
(c) two or more predicate violent felony convictions
(d) one or more predicate violent felony conviction
Answer: (c)
Choice (c) is correct (CPL 400.16).
CPL 400.20
Select all correct statements concerning court determination whether a defendant is a persistent felony offender:
(a) To sentence a person as a persistent felony offender, a court must find that he is a persistent felony offender, and additionally that sentencing as such would best serve the public interest
(b) At a hearing, the burden of proof is on the people to prove beyond a reasonable doubt that defendant is a persistent felony offender, and to establish by a preponderance of the evidence matters pertaining to defendant’s history and character, and the nature and circumstances of his criminal conduct
(c) The defendant may challenge predicate convictions on the ground that they were obtained in violation of his rights under the United States Constitution
(d) If the court’s allegations in its statement are not controverted, the court may find, without a hearing, that defendant is a persistent felony offender, and sentence him as such
(e) At any time during the pendency of a persistent felony offender hearing the court may terminate the hearing without making any finding.
Answers: (a), (b), (c), (d) and (e)
All choices are correct (CPL 400.20). Subdivisions 1, 5, 6, 8 and 10 support, in that order, choices (a), (b), (c), (d) and (e).
CPL 400.30
Select all correct answers.
In any case where the court is of the opinion that a sentence should include a fine and that the fine should be based upon the defendant’s gain from the commission of the offense:
(a) the court must order a hearing to determine the amount of such
(b) the court may, in its discretion, order hearing to determine the amount of such gain
(c) notice of such hearing must be given to the defendant, his counsel and the district attorney
(d) at a hearing, any relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence.
Answers: (b), (c) and (d)
Choices (b), (c) and (d) are supported by CPL 400.30. The holding of a hearing is discretionary with the court.
CPL 410.10
Select all correct statements.
(a) In a sentence of probation or conditional discharge the court must specify the conditions to be complied with.
(b) In a sentence of probation, the defendant must be given a written copy of the conditions
(c) Whenever defendant is given a written copy of the conditions, a copy must be filed as part of the record of the case
(d) The commission of another offense (other than a traffic infraction) is a ground for revocation of a sentence of probation or conditional discharge, whether specified or not as a condition at the time of sentence.
Answers: (a), (b), (c) and (d)
All statements are correct (CPL 410.10).
CPL 410.20
Select the correct answer.
When a defendant is sentenced to probation or conditional discharge, the court specifies conditions to be complied with by the defendant. During the period of the sentence, these conditions:
(a) may not be changed
(b) may be relaxed or eliminated, but not increased
(c) may be increased, but not relaxed or eliminated
(d) may be increased, relaxed or eliminated.
Answer: (d)
Choice (d) is correct (CPL 410.20).
CPL 410.50
Select the correct answer.
When a person is under a sentence of probation, he is:
1. subject to issuance of a search order by a court, authorizing a probation officer to search his person or premises, or both
2. subject to search of his person by a probation officer, without a warrant, based on reasonable cause to believe a condition of sentence has been violated
3. in legal custody of the court placing him on probation
4. deprived of all civil rights, such as voting
(a) 1, 2, 3 and 4 are correct
(b) 2 and 3 are correct, 1 and 4 are not
(c) 1 and 2 are correct, 3 and 4 are not
(d) 1, 2 and 3 are correct, 4 is not.
Answer: (d)
Choice (d) is correct (CPL 410.50).
CPL 410.60
Select the correct answer concerning a person taken into custody for violation of probation or conditional discharge:
(a) The person may be brought before any criminal court in the same county as the sentencing court
(b) The person must be brought to court within twenty-four hours
(c) The defendant may be committed for future hearing if the court has reasonable cause to believe he violated a condition of the sentence
(d) He may be committed for future hearing only if the court has proof beyond a reasonable doubt that the person violated a condition of the sentence.
Answer: (c)
Choice (c) is correct (CPL 410.60).
Choice (a) is incorrect, for the person must be produced before the sentencing court.
Choice (b) is incorrect, because the person must be brought to court “forthwith.”
Choice (d) is incorrect, because only “reasonable cause to believe” is needed as a basis of commitment for hearing.
CPL 410.70
Select all correct statements as to a hearing on a violation of probation.
(a) There must be a written statement of the violation with a copy given to the defendant
(b) On defendant’s request, he must be given a reasonable adjournment.
(c) The hearing is by the court without a jury
(d) Proof of the violation beyond a reasonable doubt is not required. The standard is a preponderance of the evidence
(e) Defendant has a right to counsel, and must be advised of this.
Answers: (a), (b), (c), (d) and (e)
All choices are correct (CPL 410.70).
