William J. Gray, Albany, for Andrew W., defendant.
John Biscone, Albany, for Michael M., defendant.
Thomas N. Dulin, Albany, for Eric W., defendant.
Terry J. Wilhelm, District Attorney of Greene County, Catskill (Dominic J. Cornelius of counsel), for plaintiff.
Daniel K. Lalor, J.
In separate proceedings arising from the same alleged incident, the above three defendants have entered pleas to sexual abuse in the first degree upon the understanding that the court, if warranted by the results of the various presentence investigations, would impose in each case a term of five years' probation, and would consider granting to each defendant youthful offender (YO) status. In fact, since the date of the offense in each case was subsequent to February 1, 2001, sentencing is governed by the Sexual Assault Reform Act of 2000 (L 2000, ch 1, eff Feb. 1, 2001). That Act provides for increased probationary terms of 10 years upon a defendant being sentenced to probation after conviction of any " felony sexual assault," defined as including any felony defined in Penal Law article 130 (see Penal Law § 65.00 ). Clearly, therefore, the contemplated probationary sentence may be imposed only through imposition of a 10-year probation term, if defendants are sentenced as adults. Since the court, upon due consideration, has determined to grant to each defendant youthful offender status, it remains to be considered what sentence is called for under the Act under these circumstances. The precise question is: If a defendant pleads guilty to sexual abuse in the first degree (Penal Law § 130.65 , a class D violent felony) committed after February 1, 2001, is adjudicated a youthful offender, and is sentenced to probation, is the mandatory term of probation 10 years or 5 years?
" When a person is to be sentenced upon a youthful offender finding, the court must impose a sentence as follows: ... (2) If the sentence is to be imposed upon a youthful offender finding which has been substituted for a conviction for any felony, the court must impose a sentence authorized to be imposed upon a person convicted of a class E felony" (Penal Law § 60.02 ). " [T]he court, where authorized by article sixty-five, may sentence a person to a period of probation ... as provided in that article" (Penal Law § 60.01  [a] [i]). Under the general circumstances of this case: the court may sentence a person to a period of probation upon conviction of any crime if the court, having regard to the nature and circumstances of the crime and to the history, character and condition of the defendant, is of the opinion that: (i) Institutional confinement for the term authorized by law of the defendant is or may not be necessary for the protection of the public; (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be effectively administered through probation supervision; and (iii) such disposition is not inconsistent with the ends of justice" (Penal Law § 65.00  [a]).
Penal Law § 65.00 (2) further provides, " When a person is sentenced to a period of probation the court shall, except to the extent authorized by paragraph (d) of subdivision two of section 60.01 of this chapter, impose the period authorized by subdivision three of this section and shall specify, in accordance with section 65.10, the conditions to be complied with."
Penal Law § 65.00 (3) further provides,
" Unless terminated sooner in accordance with the criminal procedure law, the period of probation shall be as follows:
" (a) (i) For a felony, other than a class A-II felony or a class B felony defined in article two hundred twenty of this chapter or a sexual assault, the period of probation shall be five years;
" (ii) For a class A-II felony or a class B felony defined in article two hundred twenty of this chapter, the period of probation shall be life;
" (iii) For a felony sexual assault, the period of probation shall be ten ...