A04314 Summary:

BILL NO    A04314C

SAME AS    SAME AS S03337-C

SPONSOR    Aubry (MS)

COSPNSR    Clark, Perry, Lifton, Peoples-Stokes, Titone, Paulin, Bronson,
           Zebrowski, O'Donnell, Pretlow, Jaffee, Crespo, Schimel, Magnarelli,
           Mosley, Rozic, Barrett, Robinson, Gottfried, Jacobs, Cook, Simotas,
           Hevesi

MLTSPNSR   Arroyo, Brennan, Duprey, Fahy, Glick, Goodell, Hooper, Lentol,
           Lupinacci, Markey, Millman, Ortiz, Raia, Rodriguez, Rosenthal,
           Scarborough, Sweeney, Titus, Walter, Weisenberg, Wright

Amd SS60.12 & 70.45, Pen L; add S440.47, amd SS450.90 & 390.50, CP L

Relates to sentencing and resentencing in domestic violence cases.
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A04314 Actions:

BILL NO    A04314C

02/04/2013 referred to codes
03/25/2013 amend and recommit to codes
03/25/2013 print number 4314a
05/14/2013 amend and recommit to codes
05/14/2013 print number 4314b
01/08/2014 referred to codes
04/09/2014 amend and recommit to codes
04/09/2014 print number 4314c
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A04314 Votes:

There are no votes for this bill in this legislative session.
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A04314 Memo:

BILL NUMBER:A4314C

TITLE OF BILL:  An act to amend the penal law and the criminal
procedure law, in relation to sentencing and resentencing in domestic
violence cases

PURPOSE:

To expand upon the existing provisions of alternative sentencing for
domestic violence cases; second, to allow judges the opportunity to
resentence Currently incarcerated persons for offenses in which
certain domestic violence criteria was a significant element of the
offense.

SUMMARY OF PROVISIONS:

Section 1 of the bill amends S 60.12 of the penal law and adds new
subparagraphs 4 and 5 to specify which offenses may be considered
under the alternative indeterminate sentence of imprisonment for
domestic violence cases.

Section 2 of the bill amends S 70.45 of the penal law to permit
determinate sentencing for persons sentenced pursuant to S 60.12(5).

Section 3 of the bill adds a new S 440.47 to the criminal procedure
law to allow currently incarcerated persons to apply for resentencing
pursuant to 6 60,12 of the penal law.

Section 4 of the bill amends 6 450.90 of the criminal procedure law to
grant leave for appeal.

Section 5 of the bill provides that these amendments would take effect
120 days after it shall have become law.

JUSTIFICATION:

Domestic violence and women's incarceration are inextricably linked:
nine of 10 incarcerated women have experienced severe physical or
sexual violence in their lifetimes, eight of 10 experienced serious
physical or sexual violence during childhood; 75% suffered severe
physical violence by an intimate partner during adulthood; and 37%
were raped before their incarceration.  Ninety-three percent of women
convicted of killing an intimate partner were abused by an intimate
partner in the past.

Over the past 30 years, domestic violence has been increasingly
recognized as a national epidemic. Unfortunately, the significant
advances made by the anti-violence movement have stopped short of
reforming the unjust ways in which the criminal justice system
responds to and punishes domestic violence survivors who act to
protect themselves from an abuser's violence.

All too often, when a survivor defends herself and her children, our
criminal justice system responds with harsh punishment instead of with
compassion and assistance. Much of this punishment is a result of our
state's current sentencing structure which does not allow judges
discretion to fully consider the impact of domestic violence when


determining sentence lengths. This leads to long, unfair prison
sentences for many survivors.

The Domestic Violence Survivors Justice Act would address this problem
for both male and female survivors of domestic violence by: (1)
allowing judges to sentence survivors to alternative sentences of
imprisonment including determinate sentences and, in some cases,
community-based alternative-to-incarceration program and (2) providing
survivors currently in prison the opportunity to apply for
resentencing, granting much-deserved relief for incarcerated
individuals who pose no threat to public safety.

The Act contains protections to ensure appropriate use of this
discretion - a judge can only grant an alternative sentence to a
defendant if s/he finds that: (1) the defendant was, at the time of
the offense, a victim of domestic violence subjected to substantial
physical, sexual or psychological abuse inflicted by a member of the
"same family or household" as the defendant as that term is defined in
subdivision one of section 530.11 of the criminal procedure law; (2)
the abuse was a "significant contributing factor" to the defendant's
participation in the crime; and, (3) a sentence under current law
would be "unduly harsh."

The bill requires a judge to apply the same test when determining
resentencing eligibility for an incarcerated survivor who submits a
resentencing application to the court. In order to be considered for
eligibility, an incarcerated survivor is also required to include
evidence corroborating the claim she was, at the time of the offense,
a victim of domestic violence.

The Act would address shortcomings in New York's current domestic
violence sentencing exception, enacted-as part of the state's 1995
Sentencing Reform Act; commonly known as Jenna's Law. This
exception-allows judges to give survivors indeterminate sentences. At
the time, state officials thought this exception would lead to less
punitive sentencing for survivors - unfortunately, it did not. In
2007, only one person had been sentenced under this exception. He
received 6 to 12 years (longer than the minimum term allowed for
individuals not sentenced under this provision) and was denied parole
twice. In 2009, not a single person was incarcerated under the
exception.

The New York State Sentencing Commission, established in 2007, noted
that this law should be replaced "with a comparable ameliorative
provision that would allow for the imposition of less harsh,
determinate sentences in such cases." The Domestic Violence Survivors
justice Act would do just that.

Eligibility for alternative indeterminate sentences of imprisonment,
determinate sentences of imprisonment and alternatives to
incarceration for women survivors is particularly appropriate as they
most often have no prior criminal records, no history of violence and
extremely low recidivism rates: of the 38 women convicted of murder
and released between 1985 and 2003, not a single one returned to
prison for a new crime within a 36-month period of release - a 0%
recidivism rate.


Community-based alternative programs are far more effective than
prison in allowing survivors to rebuild relationships with their
families, recover from abuse, and take responsibility while positively
participating in their communities. Allowing mothers to live in the
community while serving sentences also permits them to maintain ties
to children and lessen the trauma of separation - thereby increasing
the likelihood that children will receive the support they need to
become healthy, productive adults.

In addition, New York can save substantial costs by sentencing DV
survivors to lower sentences and alternative programs. It costs
approximately $43,000 per year to incarcerate a person in a New York
State prison, while the annual cost per participant of an alternative
to incarceration program in New York City is only $11,000.
Alternative programs save taxpayers tens of thousands of dollars per
person each year while helping to build healthy and safe individuals
and communities.

Domestic and international human rights standards uphold the right of
women - and all people - to live free from violence. Our government
has recognized its responsibility to preserve this right and provide
support for DV survivors. This responsibility does not end when a
survivor becomes involved in the criminal justice system because of
the abuse she suffers - in part because the very lack of adequate
protection, intervention and support is what often leads to this
involvement in the first place. with no compromise to public safety,
the DV Survivors Justice Act will help New York address the years of
injustice faced by survivors whose lives have been shattered by
domestic abuse and decrease the likelihood of survivors being
victimized by the very system that should help protect them.

PRIOR LEGISLATIVE HISTORY:

A.7874-A amended and recommitted to codes in 2011; referred to codes
in 2012 and 2013.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Given that this legislation may result in: (1) alternative sentences
and non-incarcerative sentences for at least some domestic violence
survivor-defendants and (2) resentencing and conditional release for
at least some currently incarcerated survivors, it is very likely that
this bill will save the state funds.

EFFECTIVE DATE:

This act shall take effect on the one hundred and twentieth day after
it shall have become law.
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A04314 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        4314--C

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   February 4, 2013
                                      ___________

       Introduced  by  M.  of  A.  AUBRY, CLARK, PERRY, LIFTON, PEOPLES-STOKES,
         TITONE, PAULIN, BRONSON, ZEBROWSKI, O'DONNELL, PRETLOW, JAFFEE,  CRES-
         PO,  SCHIMEL, MAGNARELLI, MOSLEY, ROZIC, BARRETT, ROBINSON, GOTTFRIED,
         JACOBS, COOK -- Multi-Sponsored by -- M. of A. ARROYO, BRENNAN,  FAHY,
         GLICK,  GOODELL,  HOOPER, LENTOL, MARKEY, MILLMAN, ORTIZ, RAIA, RODRI-
         GUEZ, ROSENTHAL, SCARBOROUGH, TITUS,  WALTER,  WEISENBERG,  WRIGHT  --
         read  once  and  referred  to  the  Committee  on  Codes  -- committee
         discharged, bill amended, ordered reprinted as amended and recommitted
         to said committee -- again reported from said  committee  with  amend-
         ments,  ordered reprinted as amended and recommitted to said committee
         -- recommitted to the Committee on Codes in accordance  with  Assembly
         Rule  3,  sec.  2  --  committee  discharged,  bill  amended,  ordered
         reprinted as amended and recommitted to said committee

       AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
         relation to sentencing and resentencing in domestic violence cases

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Section 60.12 of the penal law, as added by  chapter  1  of
    2  the laws of 1998, is amended to read as follows:
    3  S 60.12 Authorized disposition; alternative [indeterminate] sentence [of
    4            imprisonment]; domestic violence cases.
    5    1. Notwithstanding any other provision of law, where a court is impos-
    6  ing  sentence  UPON  A  PERSON  pursuant to section 70.00, 70.02 [upon a
    7  conviction  for  an  offense  enumerated  in  subdivision  one  of  such
    8  section],  70.06  OR  SUBDIVISION  TWO OR THREE OF SECTION 70.71 OF THIS
    9  TITLE, other than FOR an offense defined in [article one hundred  thirty
   10  of  this  chapter]  SECTION  125.26, 125.27, SUBDIVISION FIVE OF SECTION
   11  125.25, OR ARTICLE 490 OF THIS CHAPTER, OR FOR AN  OFFENSE  WHICH  WOULD
   12  REQUIRE  SUCH  PERSON  TO REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE
   13  SIX-C OF THE CORRECTION LAW, AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH
   14  OFFENSE, and is  authorized  or  required  pursuant  to  [such  section]

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06253-06-4
       A. 4314--C                          2

    1  SECTIONS  70.00,  70.02,  70.06  OR  SUBDIVISION TWO OR THREE OF SECTION
    2  70.71 OF THIS TITLE to impose a [determinate] sentence  of  imprisonment
    3  [for  such offense], the court, upon a determination following a hearing
    4  that  (a)  AT THE TIME OF THE INSTANT OFFENSE, the defendant was [the] A
    5  victim of DOMESTIC VIOLENCE SUBJECTED TO SUBSTANTIAL physical, sexual or
    6  psychological abuse [by the victim or intended victim of such  offense,]
    7  INFLICTED  BY  A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT
    8  AS SUCH TERM IS DEFINED IN SUBDIVISION ONE  OF  SECTION  530.11  OF  THE
    9  CRIMINAL  PROCEDURE  LAW;  (b) such abuse was a SIGNIFICANT CONTRIBUTING
   10  factor [in causing the defendant to commit such offense  and]    TO  THE
   11  DEFENDANT'S  CRIMINAL  BEHAVIOR;  (c)  [the victim or intended victim of
   12  such offense was a member of the same family or household as the defend-
   13  ant as such term is defined in subdivision one of section 530.11 of  the
   14  criminal  procedure  law,  may,  in  lieu  of  imposing such determinate
   15  sentence of imprisonment, impose an indeterminate sentence of  imprison-
   16  ment  in  accordance  with  subdivisions two and three of this section.]
   17  HAVING REGARD FOR THE NATURE AND CIRCUMSTANCES  OF  THE  CRIME  AND  THE
   18  HISTORY,  CHARACTER  AND  CONDITION OF THE DEFENDANT, THAT A SENTENCE OF
   19  IMPRISONMENT PURSUANT TO SECTION 70.00, 70.02 OR  70.06  OF  THIS  TITLE
   20  WOULD  BE  UNDULY HARSH MAY INSTEAD IMPOSE A SENTENCE IN ACCORDANCE WITH
   21  SUBDIVISION TWO, THREE, FOUR, FIVE, SIX OR SEVEN  OF  THIS  SECTION,  AS
   22  APPLICABLE.
   23    A  COURT  MAY  DETERMINE  THAT  SUCH  ABUSE  CONSTITUTES A SIGNIFICANT
   24  CONTRIBUTING FACTOR  PURSUANT  TO  PARAGRAPH  (B)  OF  THIS  SUBDIVISION
   25  REGARDLESS OF WHETHER THE DEFENDANT RAISED A DEFENSE PURSUANT TO ARTICLE
   26  THIRTY-FIVE, ARTICLE FORTY, OR SUBDIVISION ONE OF SECTION 125.25 OF THIS
   27  CHAPTER.
   28    AT  THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE SENTENCED
   29  PURSUANT TO THIS SECTION, THE COURT  SHALL  CONSIDER  ORAL  AND  WRITTEN
   30  ARGUMENTS,  TAKE  TESTIMONY  FROM WITNESSES OFFERED BY EITHER PARTY, AND
   31  CONSIDER RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION.  RELI-
   32  ABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS.
   33    2.  [The maximum term of an indeterminate sentence imposed pursuant to
   34  subdivision one of this section must be fixed by the court as  follows:]
   35  WHERE  A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE PURSUANT
   36  TO SECTION 70.02 OF THIS TITLE, THE COURT MAY IMPOSE A DEFINITE SENTENCE
   37  OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE
   38  PROVISIONS OF SECTION 65.00 OF THIS TITLE, OR MAY FIX A DETERMINATE TERM
   39  OF IMPRISONMENT AS FOLLOWS:
   40    (a) For a class B felony, the term must be at least  [six  years]  ONE
   41  YEAR and must not exceed [twenty-five] FIVE years;
   42    (b) For a class C felony, the term must be at least [four and one-half
   43  years] ONE YEAR and must not exceed [fifteen] THREE AND ONE-HALF years;
   44    (c)  For a class D felony, the term must be at least [three years] ONE
   45  YEAR and must not exceed [seven] TWO years; and
   46    (d) For a class E felony, the term must be [at least three years]  ONE
   47  YEAR and must not exceed [four] ONE AND ONE-HALF years.
   48    3. [The minimum period of imprisonment under an indeterminate sentence
   49  imposed pursuant to subdivision one of this section must be fixed by the
   50  court  at  one-half of the maximum term imposed and must be specified in
   51  the sentence] WHERE A COURT WOULD OTHERWISE  BE  REQUIRED  TO  IMPOSE  A
   52  SENTENCE  FOR A CLASS A FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
   53  TITLE, THE COURT MAY FIX A DETERMINATE TERM OF IMPRISONMENT OF AT  LEAST
   54  FIVE YEARS AND NOT TO EXCEED FIFTEEN YEARS.
   55    4.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
   56  A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF  PARAGRAPH  (B)
       A. 4314--C                          3

    1  OF  SUBDIVISION  TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
    2  DETERMINATE TERM OF IMPRISONMENT OF AT  LEAST  FIVE  YEARS  AND  NOT  TO
    3  EXCEED EIGHT YEARS.
    4    5.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
    5  A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF  PARAGRAPH  (B)
    6  OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
    7  DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT  LEAST FIVE YEARS AND NOT TO
    8  EXCEED TWELVE YEARS.
    9    6. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
   10  A  CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (B)
   11  OF SUBDIVISION TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY  FIX  A
   12  DETERMINATE  TERM OF IMPRISONMENT OF AT LEAST ONE YEAR AND NOT TO EXCEED
   13  THREE YEARS.
   14    7. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
   15  A  CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (B)
   16  OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
   17  DETERMINATE TERM OF IMPRISONMENT OF AT LEAST  THREE  YEARS  AND  NOT  TO
   18  EXCEED SIX YEARS.
   19    8.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
   20  PURSUANT TO SUBDIVISION SIX OF SECTION 70.06 OF THIS  TITLE,  THE  COURT
   21  MAY FIX A TERM OF IMPRISONMENT AS FOLLOWS:
   22    (A)  FOR  A  CLASS B FELONY, THE TERM MUST BE AT LEAST THREE YEARS AND
   23  MUST NOT EXCEED EIGHT YEARS;
   24    (B) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWO  AND  ONE-HALF
   25  YEARS AND MUST NOT EXCEED FIVE YEARS;
   26    (C) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWO YEARS AND MUST
   27  NOT EXCEED THREE YEARS;
   28    (D)  FOR  A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF
   29  YEARS AND MUST NOT EXCEED TWO YEARS.
   30    9. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
   31  A  CLASS  B,  C, D OR E FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
   32  TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH THE PROVISIONS
   33  OF SUBDIVISION TWO OF SECTION 70.70 OF THIS TITLE.
   34    10. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION,  WHERE  A
   35  COURT  WOULD  OTHERWISE  BE  REQUIRED  TO  IMPOSE A SENTENCE PURSUANT TO
   36  SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, THE COURT MAY IMPOSE A
   37  SENTENCE IN ACCORDANCE WITH  THE  PROVISIONS  OF  SUBDIVISION  THREE  OF
   38  SECTION 70.70 OF THIS TITLE.
   39    11.  WHERE  A  COURT  WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
   40  PURSUANT TO SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, WHERE  THE
   41  PRIOR  FELONY  CONVICTION  WAS  FOR  A FELONY OFFENSE DEFINED IN SECTION
   42  70.02 OF THIS TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE  WITH
   43  THE PROVISIONS OF SUBDIVISION FOUR OF SECTION 70.70 OF THIS TITLE.
   44    S  2.  Paragraphs  (a), (b), (c), (d), (e) and (f) of subdivision 2 of
   45  section 70.45 of the penal law, as amended by chapter 7 of the  laws  of
   46  2007, are amended to read as follows:
   47    (a)  such  period shall be one year whenever a determinate sentence of
   48  imprisonment is imposed pursuant to subdivision two of section 70.70  of
   49  this  article  OR SUBDIVISION FIVE OF SECTION 60.12 OF THIS TITLE upon a
   50  conviction of a class D or class E felony offense;
   51    (b) such period shall be not less than one  year  nor  more  than  two
   52  years  whenever a determinate sentence of imprisonment is imposed pursu-
   53  ant to subdivision two of section 70.70 of this article  OR  SUBDIVISION
   54  FIVE  OF  SECTION  60.12 OF THIS TITLE upon a conviction of a class B or
   55  class C felony offense;
       A. 4314--C                          4

    1    (c) such period shall be not less than one  year  nor  more  than  two
    2  years  whenever a determinate sentence of imprisonment is imposed pursu-
    3  ant to subdivision three or four of section 70.70  of  this  article  OR
    4  SUBDIVISION  SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon conviction
    5  of a class D or class E felony offense;
    6    (d) such period shall be not less than one and one-half years nor more
    7  than  three  years  whenever  a  determinate sentence of imprisonment is
    8  imposed pursuant to subdivision three or four of section 70.70  of  this
    9  article  OR SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon
   10  conviction of a class B felony or class C felony offense;
   11    (e) such period shall be not less than one and one-half years nor more
   12  than three years whenever a  determinate  sentence  of  imprisonment  is
   13  imposed  pursuant  to subdivision three of section 70.02 of this article
   14  OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
   15  class D or class E violent felony offense;
   16    (f) such period shall be not less than two and one-half years nor more
   17  than five years whenever  a  determinate  sentence  of  imprisonment  is
   18  imposed  pursuant  to subdivision three of section 70.02 of this article
   19  OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
   20  class B or class C violent felony offense.
   21    S 3. The criminal procedure law is amended by  adding  a  new  section
   22  440.47 to read as follows:
   23  S 440.47 MOTION FOR RESENTENCE; DOMESTIC VIOLENCE CASES.
   24    1.  (A)  NOTWITHSTANDING  ANY  CONTRARY  PROVISION  OF LAW, ANY PERSON
   25  CONFINED IN AN INSTITUTION OPERATED BY THE DEPARTMENT OF CORRECTION  AND
   26  COMMUNITY  SUPERVISION  SERVING A SENTENCE WITH A MINIMUM OR DETERMINATE
   27  TERM OF EIGHT YEARS OR MORE FOR AN OFFENSE COMMITTED PRIOR TO THE EFFEC-
   28  TIVE DATE OF THIS SECTION  AND  ELIGIBLE  FOR  AN  ALTERNATIVE  SENTENCE
   29  PURSUANT  TO SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER SUCH EFFEC-
   30  TIVE DATE, SUBMIT TO THE JUDGE  OR  JUSTICE  WHO  IMPOSED  THE  ORIGINAL
   31  SENTENCE UPON SUCH PERSON A REQUEST TO APPLY FOR RESENTENCING IN ACCORD-
   32  ANCE  WITH  SECTION  60.12 OF THE PENAL LAW. SUCH PERSON MUST INCLUDE IN
   33  HIS OR HER REQUEST DOCUMENTATION PROVING THAT SHE OR HE IS  CONFINED  IN
   34  AN  INSTITUTION  OPERATED BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY
   35  SUPERVISION SERVING A SENTENCE WITH A MINIMUM  OR  DETERMINATE  TERM  OF
   36  EIGHT YEARS OR MORE FOR AN OFFENSE COMMITTED PRIOR TO THE EFFECTIVE DATE
   37  OF  THIS  SECTION  AND  THAT  SHE OR HE IS SERVING SUCH SENTENCE FOR ANY
   38  OFFENSE ELIGIBLE FOR AN ALTERNATIVE SENTENCE UNDER SECTION 60.12 OF  THE
   39  PENAL LAW.
   40    (B) IF, AT THE TIME OF SUCH PERSON'S REQUEST TO APPLY FOR RESENTENCING
   41  PURSUANT  TO THIS SECTION, THE ORIGINAL SENTENCING JUDGE OR JUSTICE IS A
   42  JUDGE OR JUSTICE OF A COURT OF COMPETENT JURISDICTION, BUT SUCH COURT IS
   43  NOT THE COURT IN WHICH THE  ORIGINAL  SENTENCE  WAS  IMPOSED,  THEN  THE
   44  REQUEST  SHALL  BE  RANDOMLY ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE
   45  COURT IN WHICH THE  ORIGINAL  SENTENCE  WAS  IMPOSED.  IF  THE  ORIGINAL
   46  SENTENCING JUDGE IS NO LONGER A JUDGE OR JUSTICE OF A COURT OF COMPETENT
   47  JURISDICTION,  THEN  THE  REQUEST  SHALL BE RANDOMLY ASSIGNED TO ANOTHER
   48  JUDGE OR JUSTICE OF THE COURT.
   49    (C) IF THE COURT FINDS THAT SUCH PERSON HAS MET  THE  REQUIREMENTS  TO
   50  APPLY  FOR  RESENTENCING  IN  PARAGRAPH A OF THIS SUBDIVISION, THE COURT
   51  SHALL NOTIFY SUCH PERSON THAT HE OR SHE MAY SUBMIT  AN  APPLICATION  FOR
   52  RESENTENCING.  UPON  SUCH  NOTIFICATION, THE PERSON MAY REQUEST THAT THE
   53  COURT ASSIGN  HIM  OR  HER  AN  ATTORNEY  FOR  THE  PREPARATION  OF  AND
   54  PROCEEDINGS  ON  THE  APPLICATION  FOR  RESENTENCING  PURSUANT  TO  THIS
   55  SECTION.  THE  ATTORNEY  SHALL  BE  ASSIGNED  IN  ACCORDANCE  WITH   THE
   56  PROVISIONS  OF  SUBDIVISION  ONE  OF SECTION SEVEN HUNDRED SEVENTEEN AND
       A. 4314--C                          5

    1  SUBDIVISION FOUR OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE  COUNTY  LAW
    2  AND THE RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW.
    3    (D)  IF  THE COURT FINDS THAT SUCH PERSON HAS NOT MET THE REQUIREMENTS
    4  TO APPLY FOR RESENTENCING IN PARAGRAPH A  OF  SUBDIVISION  ONE  OF  THIS
    5  SECTION,  THE  COURT  SHALL  NOTIFY  SUCH  PERSON AND DISMISS HIS OR HER
    6  REQUEST WITHOUT PREJUDICE.
    7    2. (A) UPON THE COURT'S RECEIPT OF AN  APPLICATION  FOR  RESENTENCING,
    8  THE  COURT  SHALL  PROMPTLY NOTIFY THE APPROPRIATE DISTRICT ATTORNEY AND
    9  PROVIDE SUCH DISTRICT ATTORNEY WITH A COPY OF THE APPLICATION.
   10    (B) IF THE JUDGE OR JUSTICE THAT RECEIVED THE APPLICATION IS  NOT  THE
   11  ORIGINAL SENTENCING JUDGE OR JUSTICE, THE APPLICATION MAY BE REFERRED TO
   12  THE  ORIGINAL  SENTENCING  JUDGE OR JUSTICE PROVIDED THAT HE OR SHE IS A
   13  JUDGE OR JUSTICE OF A COURT  OF  COMPETENT  JURISDICTION  AND  THAT  THE
   14  APPLICANT AND THE DISTRICT ATTORNEY AGREE THAT THE APPLICATION SHOULD BE
   15  REFERRED.
   16    (C)  AN  APPLICATION  FOR  RESENTENCING  PURSUANT TO THIS SECTION MUST
   17  INCLUDE AT LEAST TWO PIECES OF EVIDENCE  CORROBORATING  THE  APPLICANT'S
   18  CLAIM THAT HE OR SHE WAS, AT THE TIME OF THE OFFENSE, A VICTIM OF DOMES-
   19  TIC  VIOLENCE SUBJECTED TO SUBSTANTIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL
   20  ABUSE INFLICTED BY A MEMBER OF THE  SAME  FAMILY  OR  HOUSEHOLD  AS  THE
   21  APPLICANT  AS  SUCH TERM IS DEFINED IN SUBDIVISION ONE OF SECTION 530.11
   22  OF THIS CHAPTER.
   23    AT LEAST ONE PIECE OF EVIDENCE MUST BE EITHER A COURT RECORD, PRE-SEN-
   24  TENCE REPORT, SOCIAL SERVICES RECORD, HOSPITAL RECORD,  SWORN  STATEMENT
   25  FROM  A WITNESS TO THE DOMESTIC VIOLENCE, LAW ENFORCEMENT RECORD, DOMES-
   26  TIC INCIDENT REPORT,  OR  ORDER  OF  PROTECTION.    OTHER  EVIDENCE  MAY
   27  INCLUDE,  BUT  SHALL  NOT  BE  LIMITED TO, LOCAL AND STATE DEPARTMENT OF
   28  CORRECTIONS RECORDS, A SHOWING BASED IN PART ON  DOCUMENTATION  PREPARED
   29  AT  OR NEAR THE TIME OF THE COMMISSION OF THE OFFENSE OR THE PROSECUTION
   30  THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE IS  VERIFI-
   31  CATION  OF  CONSULTATION  WITH  A LICENSED MEDICAL OR MENTAL HEALTH CARE
   32  PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE  SCOPE  OF  HIS  OR  HER
   33  EMPLOYMENT,  MEMBER  OF  THE  CLERGY,  ATTORNEY,  SOCIAL WORKER, OR RAPE
   34  CRISIS COUNSELOR AS DEFINED IN SECTION FORTY-FIVE  HUNDRED  TEN  OF  THE
   35  CIVIL  PRACTICE  LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF OF AN
   36  AGENCY THAT ASSISTS VICTIMS OF DOMESTIC  VIOLENCE  FOR  THE  PURPOSE  OF
   37  ASSISTING  SUCH  PERSON  WITH  DOMESTIC  VIOLENCE  VICTIM  COUNSELING OR
   38  SUPPORT.
   39    (D) IF THE COURT FINDS THAT THE APPLICANT HAS NOT  COMPLIED  WITH  THE
   40  PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THE COURT SHALL DISMISS
   41  THE APPLICATION WITHOUT PREJUDICE.
   42    (E)  IF  THE  COURT  FINDS  THAT  THE  APPLICANT HAS COMPLIED WITH THE
   43  PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THE COURT SHALL CONDUCT
   44  A HEARING TO AID IN MAKING ITS DETERMINATION OF  WHETHER  THE  APPLICANT
   45  SHOULD BE RESENTENCED IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW.
   46  AT SUCH HEARING THE COURT SHALL DETERMINE ANY CONTROVERTED ISSUE OF FACT
   47  RELEVANT  TO THE ISSUE OF SENTENCING. RELIABLE HEARSAY SHALL BE ADMISSI-
   48  BLE AT SUCH HEARINGS.
   49    THE COURT MAY CONSIDER ANY FACT OR CIRCUMSTANCES RELEVANT TO THE IMPO-
   50  SITION OF A NEW SENTENCE WHICH ARE SUBMITTED BY  THE  APPLICANT  OR  THE
   51  DISTRICT  ATTORNEY  AND  MAY,  IN  ADDITION,  CONSIDER THE INSTITUTIONAL
   52  RECORD OF CONFINEMENT OF SUCH PERSON, BUT SHALL NOT ORDER A NEW PRE-SEN-
   53  TENCE INVESTIGATION AND REPORT OR ENTERTAIN ANY MATTER  CHALLENGING  THE
   54  UNDERLYING BASIS OF THE SUBJECT CONVICTION. THE COURT'S CONSIDERATION OF
   55  THE INSTITUTIONAL RECORD OF CONFINEMENT OF SUCH APPLICANT SHALL INCLUDE,
   56  BUT  NOT BE LIMITED TO, SUCH APPLICANT'S PARTICIPATION IN OR WILLINGNESS
       A. 4314--C                          6

    1  TO PARTICIPATE IN PROGRAMMING SUCH AS DOMESTIC VIOLENCE,  PARENTING  AND
    2  SUBSTANCE ABUSE TREATMENT WHILE INCARCERATED AND SUCH APPLICANT'S DISCI-
    3  PLINARY  HISTORY.  THE  FACT  THAT THE APPLICANT MAY HAVE BEEN UNABLE TO
    4  PARTICIPATE IN TREATMENT OR OTHER PROGRAMMING WHILE INCARCERATED DESPITE
    5  SUCH APPLICANT'S WILLINGNESS TO DO SO SHALL NOT BE CONSIDERED A NEGATIVE
    6  FACTOR IN DETERMINING A MOTION PURSUANT TO THIS SECTION.
    7    (F)  IF  THE  COURT DETERMINES THAT THE APPLICANT SHOULD NOT BE RESEN-
    8  TENCED IN ACCORDANCE WITH SECTION 60.12 OF  THE  PENAL  LAW,  THE  COURT
    9  SHALL  INFORM SUCH APPLICANT OF ITS DECISION AND SHALL ENTER AN ORDER TO
   10  THAT EFFECT. ANY ORDER ISSUED BY A COURT PURSUANT TO THIS  SECTION  MUST
   11  INCLUDE WRITTEN FINDINGS OF FACT AND THE REASONS FOR SUCH ORDER.
   12    (G)  IF  THE COURT DETERMINES THAT THE APPLICANT SHOULD BE RESENTENCED
   13  IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW, THE COURT SHALL NOTI-
   14  FY THE APPLICANT THAT, UNLESS HE OR SHE  WITHDRAWS  THE  APPLICATION  OR
   15  APPEALS  FROM  SUCH  ORDER,  THE  COURT WILL ENTER AN ORDER VACATING THE
   16  SENTENCE ORIGINALLY IMPOSED AND IMPOSING THE NEW SENTENCE TO BE  IMPOSED
   17  AS  AUTHORIZED  BY SECTION 60.12 OF THE PENAL LAW. ANY ORDER ISSUED BY A
   18  COURT PURSUANT TO THIS SECTION MUST INCLUDE WRITTEN FINDINGS OF FACT AND
   19  THE REASONS FOR SUCH ORDER.
   20    3. AN APPEAL MAY BE TAKEN AS OF RIGHT IN  ACCORDANCE  WITH  APPLICABLE
   21  PROVISIONS  OF  THIS CHAPTER: (A) FROM AN ORDER DENYING RESENTENCING; OR
   22  (B) FROM A NEW SENTENCE IMPOSED UNDER THIS PROVISION AND MAY BE BASED ON
   23  THE GROUNDS THAT (I) THE TERM OF THE NEW SENTENCE IS HARSH OR EXCESSIVE;
   24  OR (II) THAT THE TERM OF THE NEW SENTENCE IS UNAUTHORIZED AS A MATTER OF
   25  LAW. AN APPEAL IN ACCORDANCE WITH  THE  APPLICABLE  PROVISIONS  OF  THIS
   26  CHAPTER  MAY  ALSO  BE  TAKEN AS OF RIGHT BY THE APPLICANT FROM AN ORDER
   27  SPECIFYING AND INFORMING SUCH APPLICANT OF THE TERM OF  THE  DETERMINATE
   28  SENTENCE THE COURT WOULD IMPOSE UPON RESENTENCING ON THE GROUND THAT THE
   29  TERM  OF THE PROPOSED SENTENCE IS HARSH OR EXCESSIVE; UPON REMAND TO THE
   30  SENTENCING COURT FOLLOWING SUCH APPEAL THE APPLICANT SHALL BE  GIVEN  AN
   31  OPPORTUNITY  TO  WITHDRAW  AN  APPLICATION  FOR  RESENTENCING BEFORE ANY
   32  RESENTENCE IS IMPOSED. THE APPLICANT MAY REQUEST THAT THE  COURT  ASSIGN
   33  HIM  OR  HER  AN  ATTORNEY FOR THE PREPARATION OF AND PROCEEDINGS ON ANY
   34  APPEALS REGARDING HIS OR HER APPLICATION FOR  RESENTENCING  PURSUANT  TO
   35  THIS  SECTION.  THE  ATTORNEY  SHALL  BE ASSIGNED IN ACCORDANCE WITH THE
   36  PROVISIONS OF SUBDIVISION ONE OF SECTION  SEVEN  HUNDRED  SEVENTEEN  AND
   37  SUBDIVISION  FOUR  OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW
   38  AND THE RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW.
   39    4. IN CALCULATING THE NEW TERM TO BE SERVED BY THE APPLICANT  PURSUANT
   40  TO  SECTION 60.12 OF THE PENAL LAW, SUCH APPLICANT SHALL BE CREDITED FOR
   41  ANY JAIL TIME CREDITED TOWARDS THE SUBJECT CONVICTION  AS  WELL  AS  ANY
   42  PERIOD OF INCARCERATION CREDITED TOWARD THE SENTENCE ORIGINALLY IMPOSED.
   43    S 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
   44  amended  by section 10 of part AAA of chapter 56 of the laws of 2009, is
   45  amended to read as follows:
   46    1. Provided that a certificate granting  leave  to  appeal  is  issued
   47  pursuant  to section 460.20, an appeal may, except as provided in subdi-
   48  vision two, be taken to the court of appeals by either the defendant  or
   49  the  people from any adverse or partially adverse order of an intermedi-
   50  ate appellate court entered upon an appeal taken  to  such  intermediate
   51  appellate  court  pursuant to section 450.10, 450.15, or 450.20, or from
   52  an order granting or denying a motion to set aside an order of an inter-
   53  mediate appellate court on  the  ground  of  ineffective  assistance  or
   54  wrongful deprivation of appellate counsel, or by either the defendant or
   55  the  people from any adverse or partially adverse order of an intermedi-
   56  ate appellate court entered upon an appeal taken  to  such  intermediate
       A. 4314--C                          7

    1  appellate  court  from  an  order  entered pursuant to section 440.46 OR
    2  SECTION 440.47 of this chapter. An order of  an  intermediate  appellate
    3  court  is  adverse to the party who was the appellant in such court when
    4  it affirms the judgment, sentence or order appealed from, and is adverse
    5  to  the  party who was the respondent in such court when it reverses the
    6  judgment, sentence or order appealed  from.  An  appellate  court  order
    7  which modifies a judgment or order appealed from is partially adverse to
    8  each party.
    9    S  5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
   10  procedure law, as amended by section 5 of part OO of chapter 56  of  the
   11  laws of 2010, is amended to read as follows:
   12    (a)  Not less than one court day prior to sentencing, unless such time
   13  requirement is waived by the parties, the pre-sentence report  or  memo-
   14  randum  shall  be  made  available  by the court for examination and for
   15  copying by the defendant's attorney, the defendant himself, if he has no
   16  attorney, and the prosecutor. In its discretion, the  court  may  except
   17  from disclosure a part or parts of the report or memoranda which are not
   18  relevant to a proper sentence, or a diagnostic opinion which might seri-
   19  ously  disrupt  a  program  of rehabilitation, or sources of information
   20  which have been obtained on a promise of confidentiality, or  any  other
   21  portion  thereof,  disclosure  of  which would not be in the interest of
   22  justice. In all cases where a part or parts of the report  or  memoranda
   23  are  not  disclosed, the court shall state for the record that a part or
   24  parts of the report or memoranda have been excepted and the reasons  for
   25  its  action.  The action of the court excepting information from disclo-
   26  sure shall be subject to appellate review. The pre-sentence report shall
   27  be made available by the court for examination and copying in connection
   28  with any appeal in the case, including an appeal under this subdivision.
   29  Upon written request, the court shall make a  copy  of  the  presentence
   30  report,  other  than a part or parts of the report redacted by the court
   31  pursuant to this paragraph, available to the defendant  for  use  before
   32  the  parole  board  for  release  consideration or an appeal of a parole
   33  board determination OR  AN  APPLICATION  FOR  RESENTENCING  PURSUANT  TO
   34  SECTION  440.46 OR 440.47 OF THIS CHAPTER. In his or her written request
   35  to the court the defendant shall affirm that he or  she  anticipates  an
   36  appearance  before the parole board or intends to file an administrative
   37  appeal of a parole board determination OR MEETS THE ELIGIBILITY CRITERIA
   38  FOR AND INTENDS TO FILE A MOTION FOR RESENTENCING PURSUANT TO 440.46  OF
   39  THIS  CHAPTER OR HAS RECEIVED NOTIFICATION FROM THE COURT WHICH RECEIVED
   40  HIS OR HER REQUEST TO APPLY FOR RESENTENCING PURSUANT TO SECTION  440.47
   41  OF  THIS  CHAPTER  CONFIRMING  THAT  HE  OR SHE IS ELIGIBLE TO SUBMIT AN
   42  APPLICATION FOR RESENTENCING PURSUANT TO SECTION 440.47 OF THIS CHAPTER.
   43  The court shall respond to the defendant's written request within twenty
   44  days from receipt of the defendant's written request.
   45    S 6. This act shall take effect immediately; provided,  however,  that
   46  sections  one  and two of this act shall apply to offenses committed on,
   47  after and prior to such effective  date  where  the  sentence  for  such
   48  offense has not yet been imposed; provided, further that sections three,
   49  four  and  five of this act shall take effect on the ninetieth day after
   50  it shall have become a law.
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