In misdemeanors and gross misdemeanors cases, the court has the discretion to impose any penalty up to the maximum. Generally, that decision is based upon the nature of the crime and the defendant's criminal history.
In felonies, the penalties are more concrete. The judge will give a sentence within a range based upon a defendant's criminal history and the classification of the crime.
The Standard Range
For instance, a first offender convicted of Theft in the Second Degree faces a standard range of zero to 60 days. A repeat offender with nine prior felonies faces a standard range for the same crime of 22 to 29 months.
Appeals of Standard Range
A sentence within the standard range cannot be appealed, while a sentence below the standard range can be appealed by the prosecutor and to sentence above the standard range can be appealed by the defendant. The judge has to provide a legitimate, legally sufficient reason in writing if he or she hands out a sentence below or above the standard range.