(a) In counties contained within New York City or in any county that
has a county department of correction, commitment must be to the custody
of the department of correction of such city or county;
(b) In any other case, commitment must be to the county jail,
workhouse or penitentiary, or to a penitentiary outside the county and
the order of commitment must specify the institution to which the
defendant is to be delivered.
* 4. Certain resentences. When a sentence of imprisonment that has
been imposed on a defendant is vacated and a new sentence is imposed on
such defendant for the same offense, or for an offense based upon the
same act, if the term of the new definite or determinate sentence or the
maximum term of the new indeterminate sentence so imposed is less than
or equal to that of the vacated sentence:
(a) where the time served by the defendant on the vacated sentence is
equal to or greater than the term or maximum term of the new sentence,
the new sentence shall be deemed to be served in its entirety and the
defendant shall not be committed to a correctional facility pursuant to
said sentence; and
(b) where the defendant was under the supervision of a local
conditional release commission or the department of corrections and
community supervision at the time the sentence was vacated, then the
commitment shall direct that said conditional release or parole be
recommenced, and the defendant shall not be committed to a correctional
facility pursuant to said sentence, except as a result of revocation of
parole or of conditional release; and
(c) where the defendant was not under the supervision of the
department of corrections and community supervision at the time the
indeterminate or determinate sentence was vacated, but would immediately
be eligible for conditional release from the new indeterminate or
determinate sentence, the court shall ascertain from the department of
corrections and community supervision whether the defendant has earned a
sufficient amount of good time under the vacated sentence so as to
require the conditional release of the defendant under the new sentence;
in the event the defendant has earned a sufficient amount of good time,
the court shall stay execution of sentence until the defendant
surrenders at a correctional facility pursuant to the direction of the
department of corrections and community supervision, which shall occur
no later than sixty days after imposition of sentence; upon said stay of
execution, the court clerk shall immediately mail to the commissioner of
corrections and community supervision a certified copy of the commitment
reflecting said stay of execution and the name, mailing address and
telephone number of the defendant's legal representative; in the event
the defendant fails to surrender as directed by the department of
corrections and community supervision, the department shall notify the
court which shall thereafter remand the defendant to custody pursuant to
section 430.30 of this article; and
(d) upon the resentence of a defendant as described in this
subdivision, the court clerk shall immediately mail a certified copy of
the commitment to the commissioner of corrections and community
supervision if the vacated sentence or the new sentence is an
indeterminate or determinate sentence and no mailing is required by
paragraph (c) of this subdivision; additionally, the court clerk shall
immediately mail a certified copy of the new commitment to the head of
the appropriate local correctional facility if the vacated sentence or
the new sentence is a definite sentence.
* NB Effective until September 1, 2025
* 4. Certain resentences. When a sentence of imprisonment that has
been imposed on a defendant is vacated and a new sentence is imposed on
such defendant for the same offense, or for an offense based upon the
same act, if the term of the new definite sentence or the maximum term
of the new indeterminate sentence so imposed is less than or equal to
that of the vacated sentence:
(a) where the time served by the defendant on the vacated sentence is
equal to or greater than the term or maximum term of the new sentence,
the new sentence shall be deemed to be served in its entirety and the
defendant shall not be committed to a correctional facility pursuant to
said sentence; and
(b) where the defendant was under the supervision of a local
conditional release commission or the department of corrections and
community supervision at the time the sentence was vacated, then the
commitment shall direct that said conditional release or parole be
recommenced, and the defendant shall not be committed to a correctional
facility pursuant to said sentence, except as a result of revocation of
parole or of conditional release; and
(c) where the defendant was not under the supervision of the
department of corrections and community supervision at the time the
indeterminate sentence was vacated, but would immediately be eligible
for conditional release from the new indeterminate sentence, the court
shall ascertain from the department of corrections and community
supervision whether the defendant has earned a sufficient amount of good
time under the vacated sentence so as to require the conditional release
of the defendant under the new sentence; in the event the defendant has
earned a sufficient amount of good time, the court shall stay execution
of sentence until the defendant surrenders at a correctional facility
pursuant to the direction of the department of corrections and community
supervision, which shall occur no later than sixty days after imposition
of sentence; upon said stay of execution, the court clerk shall
immediately mail to the commissioner of corrections and community
supervision a certified copy of the commitment reflecting said stay of
execution and the name, mailing address and telephone number of the
defendant's legal representative; in the event the defendant fails to
surrender as directed by the department of corrections and community
supervision, the department shall notify the court which shall
thereafter remand the defendant to custody pursuant to section 430.30 of
this article; and
(d) upon the resentence of a defendant as described in this
subdivision, the court clerk shall immediately mail a certified copy of
the commitment to the commissioner of corrections and community
supervision if the vacated sentence or the new sentence is an
indeterminate sentence and no mailing is required by paragraph (c) of
this subdivision; additionally, the court clerk shall immediately mail a
certified copy of the new commitment to the head of the appropriate
local correctional facility if the vacated sentence or the new sentence
is a definite sentence.
* NB Effective September 1, 2025
5. Commitment for failure to pay fine. Where the sentence consists of
a fine and the court has directed that the defendant be imprisoned until
it is satisfied, commitment must be as follows:
(a) If the sentence also includes a term of imprisonment, commitment
must be to the same institution as is designated for service of the term
of imprisonment, and the period of commitment commences (i) when the
term of imprisonment is satisfied, or (ii) with the approval of the
state board of parole, when the defendant becomes eligible for parole,
or (iii) when the defendant becomes eligible for conditional release,
whichever occurs first; provided, however, that the court may direct
that the period of imprisonment for the fine run concurrently with the
term of imprisonment; and
(b) In any other case, commitment must be to the agency or institution
that would be designated in the case of a definite sentence.