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