CPL 400 Abbreviated Flashcards
400.10 Pre-sentence conference
Before pronouncing sentence, court MAY hold one or more pre sentence conferences in open court or chambers.
Prosecutor and defense counsel must be given reasonable notice and afforded the opportunity to attend.
______________ does not have to attend unless court so directs.
Defendant
400.10 Pre-sentence conference
At a pre-sentence conference, the court MAY:
- direct other people to attend,
- advise parties of contents of reports,
- conduct a summary hearing,
- take testimony under oath,
- direct that proceedings be recorded by a court stenographer.
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400.15 Procedure for determining whether defendant is a second violent felony offender.
- A Second Violent Felony Offender is a person convicted of a violent felony offense who was previously convicted of a predicate __________
- Statement must be filed by prosecutor stating alleged violent felony predicate conviction.
- Court must give a copy of the statement to the defendant and ask if he wishes to controvert any of the statements.
- If sufficient uncontroverted allegations exist, the court must sentence the defendant without a hearing as a second persistent violent felony offender.
- Generally, if a defendant controverts allegations, the court must hold a hearing.
- If the statement filed by the prosecutor alleging that the person should be sentenced as a second violent felony offender is not received by the defendant at least ____ days prior to the sentence hearing, the court must upon a request of the defendant grant an adjournment of at least ______ days before proceeding with the hearing to determine whether the person has been convicted of a predicate violent felony.
- Hearing is without a jury and finding must be based on proof beyond a reasonable doubt.
- A predicate violent felony finding shall be binding on the defendant in future proceedings.
violent felony…2 ….. 2
400.16 Procedure for determining whether a defendant is a persistent violent felony offender.
A Persistent Violent Felony Offender is a person convicted of a violent felony offense who had ____________ previous violent felony convictions. Above procedures (CPL 400.15, 2-8 apply).
2 or more
400.19 Procedure for determining whether defendant is a second child sexual assault felony offender
- A Second child sexual assault felony offender is a person convicted of a felony offense of sexual assault upon a child who was previously convicted of a predicate felony for sexual assault upon a child.
- Procedures of CPL 400.15, 2-8 apply).
- Statement by prosecutor must include whether child was under ______ at time of sexual assault.
Prosecutor may also prove that child was under _______ at time of sexual assault.
18……. 15
400.20 Procedure for determining whether defendant should be sentenced as a persistent felony offender
- A Persistent Felony Offender is a person convicted of a felony after having been previously convicted of _________ felonies.
- Generally, procedures in CPL 400.15, 2-8 apply (except 2-day notice not required). Also:
- Court order directing a hearing to determine whether a person should be sentenced as a persistent felony offender must be filed with the clerk of court (and hearing date must be not less than ________ from date order was filed).
2 or more………20 days
400.20 Procedure for determining whether defendant should be sentenced as a persistent felony offender
The clerk of the court must:
- send a notice to defendant, his counsel, and DA attorney,
- include in notice a copy of the statement of the court (setting forth previous convictions and relevant factors for the purpose of sentencing the defendant).
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400.20 Procedure for determining whether defendant should be sentenced as a persistent felony offender
Persistent offender finding must be by ____________
Other matters (defendant’s history, etc.) may be established by a_______________
proof beyond reasonable doubt……….. preponderance of the evidence.
400.21 Procedure for determining whether defendant is a second felony offender or a second felony drug offender
A Second Felony Offender is a person convicted of a felony who has been previously convicted of a predicate felony as defined in 70.06 of the Penal Law.
Generally, procedures in CPL 400.15, 2-8 apply.
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400.22 Evidence of imprisonment.
The certificate of the commissioner of correction or of the warden or other chief officer of any prison, or of the superintendent or other chief officer of any penitentiary under the seal of his office containing name of person, a statement of the court in which conviction was had, the date and term of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and discharge of any person under the conviction stated and set forth in such certificate for the purposes of any proceeding under section 400.20 Procedure for determining whether defendant should be sentenced as a persistent felony offender
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400.27 Determining sentence upon conviction of murder in the first degree:
- Unless the people do not seek a ___________ , court must promptly conduct a hearing to determine whether the defendant shall be sentenced to death or life imprisonment without parole.
- Separate sentencing hearing shall be conducted before the court and jury that found the defendant guilty (unless the Court finds good cause to impanel another jury).
- If the sentence is to be death, no __________ shall be conducted.
- If the sentence is to be imprisonment, pre-sentence investigation __________
- Jury verdict must be unanimous.
death sentence……. pre-sentence investigation…… is required.
400.27 Determining sentence upon conviction of murder in the first degree:
If the court sets aside a sentence of death, the court must allow ________ for the people to appeal, if they wish. The taking of an appeal by the people ________ any new sentencing proceeding.
10 days …… stays
400.27 Procedure for determining sentence upon conviction for the offense of murder in the first degree.
- Mitigating factors shall include the following:(a) The defendant hasn’t been violent before.
(b) The defendant was mentally retarded or mentally impaired at the time of the crime, but not enough to avoid prosecution.
(c) The defendant was pressured or controlled by another person into committing the crime, but not enough to avoid prosecution.
(d) The defendant was involved in another person’s murder, but his role was small, not enough to avoid prosecution.
(e) The defendant was mentally or emotionally disturbed, or under the influence when the murder happened, but not enough to avoid prosecution.
(f) Any other relevant details about the crime, the defendant’s mental state at the time, or the defendant’s background that could affect the sentence.
(a) The defendant has no significant history of prior criminal convictions involving the use of violence against another person;
(b) The defendant was mentally retarded at the time of the crime, or the defendant’s mental capacity was impaired or his ability to conform his conduct to the requirements of law was impaired but not so impaired in either case as to constitute a defense to prosecution;
(c) The defendant was under duress or under the domination of another person, although not such duress or domination as to constitute a defense to prosecution;
(d) The defendant was criminally liable for the present offense of murder committed by another, but his participation in the offense was relatively minor although not so minor as to constitute a defense to prosecution;
(e) The murder was committed while the defendant was mentally or emotionally disturbed or under the influence of alcohol or any drug, although not to such an extent as to constitute a defense to prosecution; or
(f) Any other circumstance concerning the crime, the defendant’s state of mind or condition at the time of the crime, or the defendant’s character, background or record that would be relevant to mitigation or punishment for the crime.
400.30 determining the amount of fine based on the defendant’s gain from the offense.
In certain cases where Court will impose a fine based on defendant’s gain from the offense:
1.The court May impose ___________
2. Court must file the order with the clerk ( who will send a notice to DA, defendant and his attorney),
3. The date of the hearing must be not less than __________ of the filing of the order.
a hearing. ……. 10 days
400.30 determining the amount of fine based on the defendant’s gain from the offense.
People must prove defendant’s gain by a ______________
a preponderance of the evidence
