N.Y. Comp. Codes R. & Regs. tit. 9 § 516.10

Current through Register Vol. 46, No. 25, June 18, 2024

Section 516.10 - Sentencing

(a) Presentencing procedure.

(1) In general.

(i) Procedure. After findings of guilty have been announced, the prosecution and defense may present matter pursuant to this subdivision to aid the court-martial in determining an appropriate sentence. Such matter is ordinarily presented in the following sequence:

(a) presentation by trial counsel of:

(1) service data relating to the accused taken from the charge sheet;

(2) personal data relating to the accused and of the character of the accused's prior service as reflected in the personnel records of the accused;

(3) evidence of prior convictions, military or civilian;

(4) evidence of aggravation; and

(5) evidence of rehabilitative potential.

(b) Presentation by the defense of evidence in extenuation or mitigation or both.

(c) Rebuttal.

(d) Argument by the trial counsel on sentence.

(e) Argument by the defense counsel on sentence.

(f) Rebuttal arguments in the discretion of the military judge.

(ii) Adjudging sentence. A sentence must be adjudged in all cases without unreasonable delay.

(iii) Advice and inquiry. The military judge must personally inform the accused of the right to present matters in extenuation and mitigation, including the right to make a sworn or unsworn statement or to remain silent, and must ask whether the accused chooses to exercise those rights.

(2) Matter to be presented by the prosecution.

(i) Service data from the charge sheet. Trial counsel must inform the court-martial of the data on the charge sheet relating to the age, pay, and service of the accused and the duration and nature of any pretrial restraint. In the discretion of the military judge, this may be done by reading the material from the charge sheet or by giving the court-martial a written statement of such matter. If the defense objects to the data as being materially inaccurate or incomplete, or containing specified objectionable matter, the military judge must determine the issue. Objections not asserted are waived.

(ii) Personal data and character of prior service of the accused. Trial counsel may obtain and introduce from the personnel records of the accused evidence of the accused's marital status; number of dependents, if any; and character of prior service. Such evidence includes copies of reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of any disciplinary actions including punishments under ML, 130.15. Personnel records of the accused includes all those records made or maintained in accordance with pertinent regulations that reflect the past military efficiency, conduct, performance, and history of the accused. If the accused objects to a particular document as inaccurate or incomplete in a specified respect, or as containing matter that is not admissible under the Military Rules of Evidence, the matter must be determined by the military judge. Objections not asserted are waived.

(iii) Evidence of prior convictions of the accused.

(a) In general. The trial counsel may introduce evidence of military or civilian convictions of the accused. For purpose of this subdivision, there is a "conviction" in a court-martial case when a sentence has been adjudged.

(b) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible except that conviction by summary court-martial or special court-martial without a military judge may not be used for purposes of this subdivision until review has been completed pursuant to ML, 130.63 or 130.65, if applicable. Evidence of the pendency of an appeal is admissible.

(c) Methods of proof. Previous convictions may be proved by any evidence admissible under the Military Rules of Evidence.

(iv) Evidence in aggravation. The trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. A written or oral deposition taken in accordance with N.Y.R.C.M. 702 is admissible in aggravation.

(v) Evidence of rehabilitative potential. The trial counsel may present, by testimony or oral deposition in accordance with N.Y.R.C.M. 702(g)(1), evidence, in the form of opinion, concerning the accused's previous performance as a service member and potential for rehabilitation. On cross-examination, inquiry is allowable into relevant and specific instances of conduct.

(3) Matter to be presented by the defense.

(i) In general. The defense may present matters in rebuttal of any material presented by the prosecution and may present matters in extenuation and mitigation regardless of whether the defense offered evidence before findings.

(a) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstance surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification or excuse.

(b) Matter in mitigation. Matter in mitigation of an offense is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes the fact that non-judicial punishment under ML, 130.15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, particular acts of good conduct or bravery, and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a service member.

(ii) Statement by the accused.

(a) In general. The accused may testify, make an unsworn statement, or both in extenuation, in mitigation, or to rebut matters presented by the trial counsel, or for all three purposes whether or not the accused testified prior to findings. The accused may limit such testimony or statement to any one or more of the specifications of which the accused has been found guilty. The filing of an affidavit of the accused is not permitted.

(b) Testimony of the accused. The accused may give sworn oral testimony and is subject to cross-examination concerning it by the trial counsel or examination on it by the court-martial, or both.

(c) Unsworn statement. The accused may make an unsworn statement and may not be cross-examined by the trial counsel upon it by the court-martial. The trial counsel may, however, rebut any statements of facts therein. The unsworn statement may be oral, written, or both, and may be made by the accused, by counsel, or both.

(iii) Rules of evidence relaxed. The military judge may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence. This may include admitting letters, affidavits, certificates of military and civil officers, and other writings of similar authenticity and reliability.

(4) Rebuttal and surrebuttal. The trial counsel may rebut matters presented by the defense. The defense in surrebuttal may then rebut any rebuttal offered by the trial counsel. Rebuttal and surrebuttal may continue, in the discretion of the military judge. If the Military Rules of Evidence were relaxed under subparagraph (3)(iii) of this subdivision, they may be relaxed during rebuttal and surrebuttal to the same degree.

(5) Production of witnesses.

(i) In general. During the presentence proceedings, there is to be much greater latitude than on the merits to receive information by means other than testimony presented through the personal appearance of witnesses. Whether a witness will be produced to testify during presentence proceedings is a matter within the discretion of the military judge, subject to the limitations in subparagraph (ii) of this paragraph.

(ii) Limitations. A witness may be produced to testify during presentence proceedings through a subpoena or travel orders at State expense only if:

(a) the testimony expected to be offered by the witness is necessary for consideration of a matter of substantial significance to a determination or an appropriate sentence, including evidence necessary to resolve an alleged inaccuracy or dispute as to a material fact;

(b) the weight or credibility of the testimony is of substantial significance to the determination of an appropriate sentence;

(c) the other party refuses to enter into a stipulation of fact containing the matters to which the witness is expected to testify, except in an extraordinary case when such a stipulation of fact would be an insufficient substitute for the testimony;

(d) other forms of evidence, such as oral depositions, written interrogatories, or former testimony would not be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence;

(e) the significance of the personal appearance of the witness to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production of the witness. Factors to be considered include the costs of producing the witness, the timing of the request for production of the witness, the potential delay in the presentencing proceeding that may be caused by the production of the witness, and the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training.

(6) Additional matters to be considered. In addition to matters introduced under this subdivision, the court-martial may consider:

(i) that a plea of guilty is a mitigating factor; and

(ii) any evidence properly introduced on the merits before findings, including:

(a) evidence of other offenses or acts of misconduct even if introduced for a limited purpose; and

(b) evidence relating to any mental impairment or deficiency of the accused.

(7) Argument. After introduction of matters relating to sentence under this subdivision, trial counsel and defense counsel may argue for an appropriate sentence. Trial counsel may not in argument purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than that court-martial may adjudge. Trial counsel may, however, recommend a specific lawful sentence and may also refer to generally accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution. Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall waive the objection.

(b) Sentence determination. Subject to limitations in 130.18, 130.19 and 130.20(b), ML, as appropriate, the sentence to be adjudged is a matter within the discretion of the court-martial. To the extent that punishment is discretionary, the sentence must provide a legal, appropriate, and adequate punishment, including a sentence of no punishment.

(c) Punishments.

(1) In general. Subject to the limitations in this Chapter, the punishments authorized in the code may be adjudged in the case of any person found guilty of an offense by a court-martial.

(2) Authorized punishments. Subject to the limitations in ML, 130.18, 130.19 and 130.20(b), a court-martial may adjudge only the following punishments:

(i) Reprimand. A court-martial cannot specify the terms or wording of a reprimand. A reprimand, if approved, must be issued, in writing, by the convening authority.

(ii) Forfeiture of pay and allowances. A sentence of forfeiture must state the exact amount in whole dollars to be forfeited each month and the number of months the forfeitures will last. The maximum authorized amount of a partial forfeiture is determined by using the basic pay authorized by the cumulative years of service of the accused, and, if no confinement is adjudged any sea or foreign duty pay. If the sentence also includes reduction in grade expressly or by operation of law, the maximum forfeiture is based on the grade to which the accused is reduced.

(iii) Fine. Any court-martial may adjudge a fine instead of, or in addition to, forfeitures. Special and summary courts-martial may not adjudge any fine in excess of the total amount of forfeitures which may be adjudged in that case. In order to enforce collection, a fine may be accompanied by a provision in the sentence that, in the event the fine is not paid, the person fined must, in addition to any period of confinement adjudged, be further confined for a period not exceeding one day for each dollar of fine imposed. The total period of confinement so adjudged cannot exceed the jurisdictional limitations of the court-martial (see ML, 131.8).

(iv) Reduction in pay grade. Except as provided in N.Y.R.C.M. 1301(d), a court-martial may sentence an enlisted member to be reduced to an inferior pay grade.

(v) Confinement at hard labor. The place of confinement cannot be designated by the court-martial. A court-martial cannot adjudge a sentence to solitary confinement or to confinement without hard labor (ML, 130.57 and 130.58).

(vi) Punitive separation. A court-martial may not adjudge an administrative separation from the service. There are three types of punitive separation:

(a) Dismissal. Dismissal applies only to commissioned officers, commissioned warrant officers, cadets, and midshipmen and may be adjudged only by a general court-martial. A dismissal may be adjudged for any offense of which an officer, cadet, or midshipman has been found guilty.

(b) Dishonorable discharge. A dishonorable discharge applies only to enlisted persons and warrant officers who are not commissioned and may be adjudged only by a general court-martial. A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted to offenses requiring severe punishment.

(c) Bad-conduct discharge. A bad-conduct discharge applies only to enlisted persons and may be adjudged by a general court-martial and by a special court-martial which has met the requirement of N.Y.R.C.M. 201(f)(2). A bad-conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than as a punishment for serious offenses. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.

(3) Limits on punishments.

(i) Maximum punishment. The maximum limits for the authorized punishments of confinement, forfeitures, and punitive discharge (if any) are set forth in ML, 130.18, 130,19, and 130.20(c), for respectively, general, special, and summary courts-martial. It is not mandatory that any or all of the maximum punishments be imposed. When a dishonorable discharge is authorized, a bad-conduct discharge is also authorized. The types of punishments listed in paragraph (2) of this subdivision may be imposed.

(ii) Based on rank of accused.

(a) Commissioned or warrant officers.

(1) A commissioned or warrant officer may not be reduced in grade by any court-martial.

(2) Only a general court-martial may sentence a commissioned or warrant officer or a cadet, or midshipman to confinement.

(3) Only a general court-martial, upon conviction of any offense in violation of the code, may sentence a commissioned or warrant officer or a cadet or midshipman to be separated from the service with a punitive separation. In the case of officers, cadets, and midshipmen, the separation is by dismissal. In the case of noncommissioned warrant officers, the separation is by dishonorable discharge.

(b) Enlisted persons (see subsection N.Y.R.C.M. 1301[d]).

(d) Instructions on sentence.

(1) In general. The military judge must give the members appropriate instructions on sentence.

(2) When given. Instructions on sentence must be given after arguments by counsel and before the members close to deliberate on sentence, but the military judge may upon request of the members, any party, or sua sponte, give additional instructions at a later time.

(3) Requests for instructions. After presentation of matters relating to sentence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. The military judge may require the requested instruction to be written. Each party has the opportunity to be heard on any proposed instruction on sentence before it is given. The military judge must inform the parties of the proposed action on such requests before their closing arguments on sentence.

(4) How given. Instructions on sentence must be given orally on the record in the presence of all parties and the members. Written copies of the instructions, or unless a party objects, portions of them, may also be given to the members for their use during deliberations.

(5) Required instructions. Instructions on sentence must include:

(i) a statement of the maximum authorized punishment which may be adjudged;

(ii) a statement of the procedures for deliberation and voting on the sentence set out in N.Y.R.C.M. 1006;

(iii) a statement informing the members that they are solely responsible for selecting an appropriate sentence and may not rely on the possibility of any mitigating action by the convening or higher authority; and

(iv) a statement that the members should consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings, and matters introduced under N.Y.R.C.M. 1006(b)(1), (2), (3) and (5).

(6) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence waives the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions were improper. The parties have the opportunity to be heard on any objection outside the presence of the members.

(e) Deliberations and voting on sentence.

(1) In general. The members must deliberate and vote after the military judge instructs the members on sentence. Only the members are to be present during deliberations and voting. Superiority in rank cannot be used in any manner to control the independence of members in the exercise of their judgement (130.37, ML).

(2) Deliberations. Deliberations may properly include full and free discussion of the sentence to be imposed in the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such requests.

(3) Proposal of sentences. Any member may propose a sentence. Each proposal must be in writing and must contain the complete sentence proposed. The junior member collects the proposed sentences and submits them to the president.

(4) Voting (ML, 130.51).

(i) Duty of members. Each member has the duty to vote for a proper sentence for the offenses of which the court-martial found the accused guilty regardless of the member's vote or opinion as to the guilt of the accused.

(ii) Secret ballot. Proposed sentences must be voted on by secret written ballot.

(iii) Procedure.

(a) Order. All members must vote on each proposed sentence in its entirety beginning with the least severe, and continuing, as necessary, with the next least severe, until a sentence is adopted by the concurrence of the number of members required under subparagraph (ii) of this paragraph. The process of proposing sentences and voting on them may be repeated as necessary until a sentence is adopted.

(b) Counting votes. The junior member collects the ballots and counts the votes. The president checks the count and informs the other members of the result.

(iv) Number of votes required. A sentence may be adjudged only if at least two-thirds of the members present vote for that sentence.

(v) Effect of failure to agree. If the required number of members do not agree on a sentence after a reasonable effort to do so, a mistrial may be declared as to the sentence and the case must be returned to the convening authority, who may order a rehearing on sentence only or order that a sentence of no punishment be imposed.

(5) Action after a sentence is reached. After the members have agreed upon a sentence, the court-martial must be opened and the president must inform the military judge that a sentence has been reached. The military judge may, in the presence of the parties, examine any writing which the president intends to read to announce the sentence and may assist the members in putting the sentence in proper form. Neither that writing nor any oral or written clarification or discussion concerning it constitutes announcement of the sentence.

(f) Announcement of sentence.

(1) In general. The sentence is announced by the president or, in a court-martial composed of a military judge alone, by the military judge, in the presence of all parties promptly after it has been determined (ML, 130.53).

(2) Erroneous announcement. If the announced sentence is not the one actually determined by the court-martial, the error may be corrected by a new announcement made before the record of trial is authenticated and forwarded to the convening authority. This action is not a reconsideration of the sentence. If the court-martial has been adjourned before the error is discovered, the military judge may call the court-martial into session to correct the announcement.

(3) Polling prohibited. Except as provided in Mil. R. Evid. 606, members may not otherwise be questioned about their deliberations and voting.

(g) Impeachment of sentence. A sentence which is proper on its fact may be impeached only when extraneous prejudicial information was improperly brought to the attention of a member, outside influence was improperly brought to bear upon any member, or unlawful command influence was brought to bear upon any member.

(h) Reconsideration of sentence.

(1) Time for reconsideration. Subject to this subdivision, a sentence may be reconsidered by the members or the military judge who reached it at any time before the record of trial is authenticated.

(2) Limitations. After a sentence has been announced, it may not be increased upon reconsideration unless the sentence announced was less than the mandatory minimum prescribed for an offense of which the accused has been found guilty.

(3) Initiation of reconsideration.

(i) By members. Any member may propose that a sentence reached by the members be reconsidered.

(ii) By military judge.

(a) Adjudged by military judge. The military judge may initiate reconsideration of a sentence adjudged by that military judge.

(b) Reached by members. When a sentence reached by members is ambiguous or apparently illegal, the military judge must bring the matter to the attention of the members if the matter discovered before the court-martial is adjourned. If the matter is discovered after adjournment, the military judge may call a session for reconsideration and proceed in accordance with paragraph (4) of this subdivision, or may bring the matter to the attention of the convening authority.

(iii) By convening authority. When a sentence adjudged by the court-martial is ambiguous or apparently illegal, the convening authority may return the matter to the court-martial for clarification or may approve a sentence no more severe than the legal, unambiguous portions of the adjudged sentence.

(4) Procedure with members.

(i) Instructions. When a sentence has been reached by members and reconsideration has been initiated under paragraph (3) of this subdivision, the military judge must instruct the members on the procedure for reconsideration.

(ii) Voting. The members must vote by secret written ballot in closed session whether to reconsider a sentence already reached by them.

(iii) Number of votes required.

(a) With a view to increasing. Subject to paragraph (2) of this subdivision, members may reconsider a sentence with a view of increasing it only if at least a majority vote to reconsider.

(b) With a view to decreasing. Members may reconsider a sentence with a view to decreasing it only if more than one-third of the members vote to reconsider.

(iv) Successful vote. If a vote to reconsider a sentence succeeds, the procedure in N.Y.R.C.M. 1005 shall apply.

(i) Advice concerning post-trial and appellate rights.

(1) Advice. In each general and special court-martial, after the sentence is announced and before the court-martial is adjourned, the military judge must inform the accused of:

(i) the right to submit matters to the convening authority to consider before taking action;

(ii) the right to appellate review, as applicable, and the effect of waiver or withdrawal of such rights;

(iii) the right to apply for relief from the State judge advocate if the case is not reviewed by the Board of Military Review; and

(iv) the right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision to waive them.

(2) Inquiry. After compliance with paragraph (1) of this subdivision, the military judge must inquire of the accused to ensure that the accused understands the advice.

(j) Adjournment. The military judge may adjourn the court-martial at the end of the trial of an accused or proceed to trial of other cases referred to that court-martial. Such an adjournment may be for a definite or indefinite period.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.10