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Meaning of Imprecise and Confusing Term “Violent Felony Override” Explained

The Second Department, in response to the defendant’s request for a “violent felony override” at sentencing, explained that the confusing term relates to a document that sets force the precise statute, including the section and subdivision, of which the defendant was convicted.  Certain specific enumerated offenses, although violent felonies, will not disqualify an inmate from eligibility for temporary release. Only the Department of Corrections can make the determination whether a conviction disqualifies an inmate from eligibility:

“Violent felony override” is not a term contained in a statute or regulation. It is an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense (see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility … . One source of confusion that may arise from the use of the term “violent felony override” is that the term may imply that the document itself qualifies the inmate for eligibility for temporary release. It does not. It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility (see generally 7 NYCRR 1900.4).

A second source of confusion that may arise from the use of the term “violent felony [*2]override” to describe the document specified in 7 NYCRR 1900.4(c)(1)(iii) is the erroneous belief that the issuance of the document is discretionary. Although this provision refers to “a court-generated document or document generated by the Office of the District Attorney,” a defendant is entitled to have the exact subdivision of the statutory provisions under which he or she was convicted specified in the sentence and commitment: “[a] sentence and commitment or certificate of conviction, specifying the section, and to the extent applicable, the subdivision, paragraph and subparagraph of the penal law or other statute under which the defendant was convicted, or a certified copy thereof . . . must be delivered to the person in charge of the correctional facility or office of children and family services facility to which the defendant is committed at the time the defendant is delivered thereto” … . People v Lynch, 2014 NY Slip Op 06608, 2nd Dept 10-1-14

 

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