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New York Consolidated Laws

N.Y. Penal Law § 70.85 (2026)

Transitional exception to determinate sentencing laws

✓ current as of May 2026
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§ 70.85 Transitional exception to determinate sentencing laws.
  This section shall apply only to cases in which a determinate sentence
was imposed between September first, nineteen hundred ninety-eight, and
the effective date of this section, and was required by law to include a
term of post-release supervision, but the court did not explicitly state
such a term when pronouncing sentence. When such a case is again before
the court pursuant to section six hundred one-d of the correction law or
otherwise, for consideration of whether to resentence, the court may,
notwithstanding any other provision of law but only on consent of the
district attorney, re-impose the originally imposed determinate sentence
of imprisonment without any term of post-release supervision, which then
shall be deemed a lawful sentence.
Notes of Decisions
Cited in 112 cases (4 in the last 5 years), 2008–2026 · leading case: The People v. Roni Smith The People v. Keith Fagan, 66 N.E.3d 641 (NY 2016).
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The People v. Roni Smith The People v. Keith Fagan, 66 N.E.3d 641 (NY 2016). · cites it 21× “The Legislature, in an attempt to remedy the Catu errors committed between September 1, 1998 and June 30, 2008, enacted Penal Law § 70.85, which granted the court, with the consent of the district attorney, the authority to re-impose the original - 26 - - 27 - Nos.”
People v. Williams, 925 N.E.2d 878 (NY 2010). · cites it 6× “We therefore remit this case to Supreme Court to give the People the opportunity to litigate their argument regarding the applicability of Penal Law § 70.85 and for defendant to assert any constitutional challenges to the operation of the statute" ( id.”
People v. Boyd, 908 N.E.2d 898 (NY 2009). · cites it 7× “On June 30, 2008, after the Appellate Division’s ruling in this case, Penal Law § 70.85 became effective; it states that “[t]his section shall apply only to cases in which a determinate sentence was imposed between Septem *394 ber first, nineteen hundred ninety-eight, and the…”
People v. Beaty, 5 N.E.3d 983 (NY 2014). · cites it 3× “The People consented, pursuant to the then-recently enacted Penal Law § 70.85, to the court re-sentencing defendant to the original determinate sentence of 23 years’ incarceration without a term of PRS.”
People v. Pignataro, 3 N.E.3d 1147 (NY 2013). · cites it 5× “Defendant Anthony Pignataro challenges his resentencing under Penal Law § 70.85, claiming the statute is unconstitutional because it deprives him of his right to vacate his guilty plea.”
People v. Boyer, 999 N.E.2d 1176 (NY 2013). · cites it 4× “1 In November 2009, upon receiving the People’s consent, the court resentenced defendant on his 2002 conviction by maintaining his original prison term and declining to add a PRS term to his sentence (see Penal Law § 70.85). 2 On November 24, 2009, defendant moved to vacate his…”
People v. Williams, 82 A.D.3d 1576 (N.Y. App. Div. 2011). · cites it 4× “Because the original sentence was imposed between September 1, 1998 and June 30, 2008, the court was authorized to resentence defendant pursuant to Penal Law § 70.85. The statute provides that, with the consent of the District Attorney, a court that imposed a determinate term of…”
People v. Acevedo, 952 N.E.2d 1047 (NY 2011). · cites it 3× “NOTES [*] Penal Law § 70.85 provides in relevant part that, with the People's consent, the court may at a resentence to cure the omission of mandatory PRS from a sentence "re-impose the originally imposed determinate sentence of imprisonment without any term of post-release…”
Sudler v. City of New York, 689 F.3d 159 (2d Cir. 2012). · cites it 2× “2d 467 (2008), superseded in part by N.Y. Penal Law § 70.85 and N.Y. Correct. Law § 601 — d; People v.”
People v. Collier, 5 N.E.3d 5 (NY 2013). · cites it 2× “As we discussed in People v Pignataro ( 22 NY3d 318 [2013]), the legislature eventually enacted Penal Law § 70.85 to allow a sentencing court to honor the bargain originally knowingly, voluntarily and intelligently struck by the defendant with the People.”
Hassell v. Fischer, 96 F. Supp. 3d 370 (S.D.N.Y. 2015). · cites it 3× “5 N.Y. Penal Law § 70.85 . The Legislature also clarified that the term of PRS following a determinate sentence must be verbally pronounced at the same time as the determinate sentence.”
People v. Rucker, 67 A.D.3d 1126 (N.Y. App. Div. 2009). · cites it 4× “While the People concede that County Court’s failure to mention postrelease supervision during the allocution renders the plea defective, they contend that the matter should be remitted pursuant to Penal Law § 70.85 to the sentencing court where, with the District Attorney’s…”
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