When an offender is convicted of a crime, the next step is sentencing. In the United States, a sentence can mean a variety of punishments including execution, jail, probation, supervision, parole, fines, restitution, sex offender registration, or any combination of these. The sentence that is handed down by the judge depends on several factors as outlined in the sentencing guidelines or the relevant statutes. 

If you are facing charges or believe you may be going to trial for a crime, it’s a good idea to have some understanding of sentencing guidelines for federal crimes or crimes committed in New York. You need to know what you are up against because a conviction can change your life even if you don’t serve any prison time.

All it takes is one charge to dramatically change your life in so many ways. But if you are convicted, you will have to sit through sentencing.

Here’s what you need to know.

Federal Sentencing Guidelines

The Federal Sentencing Guidelines are a set of rules that are not binding but do provide a uniform structured sentencing policy in the United States federal court system. These rules are designed to provide guidance for sentencing defendants who are convicted of federal crimes.

They are not mandatory, and it is left to the discretion of the judge to adhere to the Guidelines or depart from them. If they choose the latter, the judge is required to explain the factors that he or she took into consideration that caused them to hand down a decreased or increased sentence.

How do federal sentences work?

Under the Guidelines, offenses are ranked according to the seriousness of the crime. There are 43 levels with level 1 for the least serious offenses to level 43 for the most serious offenses. Each type of crime has a designated base offense level that corresponds to the recommended sentence for that type of crime. The sentence may be increased from there, according to certain factors, such as using a firearm in a robbery. The base offense level for robbery is 20, but because a firearm is used, the level is increased by 5, so the total offense level is now 25. Discharging that firearm during the robbery adds 7 levels so the total offense level would be 27.

What are the categories of adjustments?

Sometimes adjustments can be applied to offenses to decrease or increase them. Some adjustment categories include – the role the offender played in the commission of the crime, adjustments that are related to the victim, and obstruction of justice. 

For instance, an offender whose participation in the offense was minimal, may see their offense level decrease by 4 levels while an offender who is aware of the victim’s vulnerability due to mental or physical condition or age may see their offense level increase by 2 levels. And an offender who obstructs justice may also see their offense level increase by 2 levels.

Multiple counts of conviction are addressed in the Guidelines to achieve a combined offense level. The most serious offense is the starting point and from there the other counts can decrease or increase the total offense level.

An adjustment may also be made to the offender’s offense level by decreasing it by 2 levels if the judge is of the opinion that the offender has accepted responsibility for his or her offense. This could include the offender truthfully admitting to their role in the crime, making restitution prior to a guilty verdict, and if the offender pled guilty to the crime. 

How does criminal history factor into sentencing?

There are six criminal history categories that the Guidelines assign offenders. These categories are based on previous misconduct of the offender. The least serious category is Criminal History Category I. Many first-time offenders fall under this category. The most serious category is Criminal History Category VI. Offenders who have serious criminal records fall under this category. The categories are then used to provide guidance for the number of months in prison.

What are the two main factors that are considered under the Federal Sentencing Guidelines?

Under the Guidelines, the two main factors that are considered by the judge are:

    • The conduct that is associated with the offense. In other words, the conduct that is used to assign the offense level.
    • The criminal history of the offender. A first-time offender may not have as long or stringent a sentence as someone who is a repeat offender.

What do federal judges consider when sentencing?

When a judge imposes a sentence, it is not done lightly. It must be sufficient and appropriate punishment for the crime but cannot be greater or harsher than is necessary. It must also reflect the gravity of the offense while promoting reverence for the law. It must provide just and fair punishment for the crime and act as a deterrent for criminal conduct. It must provide the public with some level of protection from future crimes that may be carried out by the offender while providing the offender with medical care, vocational training, education, and other life necessities.

New York Sentencing Guidelines

Like many states, New York has its own set of sentencing guidelines. These guidelines, the Sentence Chart, are set forth under Article 70 – New York Penal Law – Sentences of Imprisonment. It is a rather complex set of rules that involves four sentencing charts. What’s more, New York drug offenses are not covered under any of the 4 sentencing charts.

How does sentencing work in NY?

There are two types of sentences in New York:

  • Determinate – A sentence that has a set period of time it will run, such as 20 years or 5 years. This is usually for violent felonies or drug offense felonies. It can also be for an offender with a prior violent felony conviction.
  • Indeterminate – A sentence that has a time range it will run, such as 25 years to life or 5 to 15 years. This is usually for non-violent felonies. When the offender reaches the minimum time within the range, they are eligible for parole.

There are three factors that guide the use of the four sentencing charts:

  • The classification of the crime that is charged – All crimes are classified in New York. The classes of felonies are A, B, C, D, and E.  Class A is the most serious felony and includes first-degree kidnapping and first-degree murder. The least serious felonies are Class E and can include fourth-degree grand larceny.
  • The charged crime classification of violent or non-violent – The New York Penal Code defines the crimes that are violent and non-violent. Stalking and vandalism are considered non-violent under New York law while murder and second-degree burglary are violent felonies.
  • Prior felony convictions of the offender – The offender’s prior convictions will have an impact on their sentences for subsequent cases. New York also looks at the classifications of the prior convictions with violent felonies carrying greater weight than non-violent felonies.

What are the four sentencing charts?

Each chart takes the three factors into consideration and uses them to shape appropriate sentences for offenders.

  • New York Sentencing Guidelines for No Prior Felony Convictions – This chart is for offenders who don’t have any prior felony convictions. 
  • New York Sentencing Guidelines for a Prior Non-Violent Felony Conviction – This chart is for offenders who have a prior felony conviction that is non-violent.
  • New York Sentencing Guidelines for One Prior Violent Felony Conviction – This chart is for offenders who have been previously convicted of one violent felony.
  • New York Sentencing Guidelines for Two or More Prior Violent Felony Convictions – This chart is for offenders referred to as “persistent felony offenders” or “discretionary persistent offenders.” This means people who have been convicted of two or more prior felonies. It also applies to “persistent violent felony offenders” or “mandatory persistent.” This means people who have been convicted of two or more prior violent felonies.

How are Sentences Determined for Drug Crimes in New York?

Crimes related to the possession and sale of illegal drugs in New York are sentenced according to a different sentencing guideline chart for drug crimes. There are separate sentencing tables for sale, possession, and other related drug crimes. The charts assign Classes to felonies just like the other sentencing charts and provide guidelines for sentencing, calling into consideration the offender’s character and history, as well as the nature and circumstances of the crime. This is to avoid sentences that are unduly harsh as well as too light.

How does a New York judge determine an appropriate sentence?

The judge in a New York criminal case will look at a variety of things when determining the sentence. They will look at the offender’s criminal history, their background, the nature and details of the crime, and the victim’s attitude. The victim may also make a victim impact statement to inform the court of how the crime has affected them and impacted their life.

Repeat offenders tend to have harsher sentences than first-time offenders, and violent prior offenders have even harsher sentences. The judge must look at not only the crime and the offender, but what impact that offender will have on the safety of the public if he or she is allowed to be free or have a lighter, shorter sentence.

Other Types of Sentencing

There are other types of sentencing beyond prison and fines.

  • Restitution – The court can order the convicted offender to pay for losses that were incurred by the victim due to the crime.
  • Leandra’s Law – Law that imposes additional penalties for a person who is convicted of DWI and had a child passenger in the car at the time who was 15 years old or younger.
  • Ignition Interlock Device – Any offender who has been convicted of DWI or aggravated DWI, misdemeanor, or felony, must install the ignition interlock device.
  • Sex Offender Registry – Certain sex crimes require the convicted offender to sign up for the sex offender registry.
  • DNA Databank – Any offender who has been convicted of a crime, usually a felony, is required to provide a DNA sample so that it can be added to the New York State DNA Databank.

Presentence Investigation Report

A presentence report can be used to help determine the punishment for the offender for a crime they committed. This report is done by probation officers, and it is created after the conviction, but prior to the sentencing date. It is done in serious misdemeanor cases and felonies.

The offender is interviewed by a psychologist or social worker who works for the probation department. They also check the criminal record of the offender. They may also speak to relevant parties, including the arresting officer, the victim of the crime, and the offender’s friends and family. The report itself includes what happened during the crime, the personal history of the offender as well as their criminal record, and a victim impact statement.

The report then provides recommendations for sentencing.

Victim Impact Statement

A victim impact statement can be either a verbal or written statement from the victims of the crime about the ways that the crime has impacted their lives and them personally. It is used at both sentencing and parole.

If you have been charged with a crime and believe you may be going to trial – or if you already have a trial date – you need an attorney who will stand by you and protect your rights.

You need The Litvak Law Firm. 

Mr. Litvak has the experience and knowledge necessary to represent you and ensure that you have the best possible outcome in your case. Don’t try to go it alone. Call today at (718) 989-2908 for your free consultation and get the representation that you deserve.