NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5964
SPONSOR: Crespo TITLE OF BILL:
An act to amend the penal law and the criminal procedure law, in
relation to reducing certain sentences of imprisonment for misdemeanors
to three hundred sixty-four days
PURPOSE OR GENERAL IDEA OF BILL:
An act to amend the penal law, in relation to reducing certain sentences
of imprisonment for misdemeanors to three hundred sixty-four days
SUMMARY OF PROVISIONS:
Section one amends subdivisions 1 of section 70.15 of the Penal Law to
reduce by one day, from one year (365 days) to 364 days, the maximum
definite sentence of imprisonment that may be imposed for a misdemeanor
conviction. A conforming change is made to PL § 70.15 (3), to extend
that one day reduction to provisions of law outside the Penal Law that
otherwise authorize a misdemeanor sentence of up to one year imprison-
ment.
Section two adds a new subdivision I-a to Penal Law § 70.15. This subdi-
vision extends this one day reduction to misdemeanor sentences of one
year imposed before, on or after the effective date of the bill. The
change will occur by operation of law; any person sentenced to a period
of one year under the former provisions of law would be able to obtain
an updated certificate of conviction from the court setting forth such
amended sentence. Any sentence for a misdemeanor conviction imposed
prior to the effective date of this subdivision that is other than a
definite sentence of imprisonment of one year may be set aside.
Section three amends subdivision 1 of section 440.10 of the criminal
procedure law to include, the judgement is a conviction for a class A or
unclassified misdemeanor entered prior to the effective date of this
paragraph and satisfies the ground prescribed in paragraph (h) of this
subdivision. There shall be a rebuttable presumption that a conviction
by plea to such an offense was not knowing and voluntary, based on sever
or ongoing collateral consequences, including potential or actual immi-
gration consequences and that there shall be a rebuttable presumption
that a conviction by verdict constitutes cruel and unusual punishment
under section five of article one of the stat constitution based on such
consequences.
Section four amends Section 440.10 of the criminal procedure law in
relation to granting motions, the court may either, vacate the judgement
or modify the judgement by reducing it to one of conviction for a lesser
offense, with the consent of the people. The court also may vacate the
trial wherein the defendant, enters a plea to the same offense in order
to permit the court to resentence the defendant in accordance with amen-
datory provisions of subdivision one-a of section 70.15 of the penal
law.
Section five provides the active date.
JUSTIFICATION:
Because of the way New York's Penal Law interacts with federal immi-
gration law, non-citizens, including lawful permanent residents, with
recent or long-past criminal charges sometimes face unexpected and undu-
ly harsh immigration consequences. One significant concern arises
because the maximum potential sentence of imprisonment for conviction of
a Class A misdemeanor in New York is one year imprisonment.
Under federal immigration law, the potential for a one year sentence can
trigger deportation proceedings and removal from the United States in
many circumstances, even when the person spent no time in jail at all.
Further, an actual sentence of one year in jail for a misdemeanor
conviction serves to disqualify New Yorkers in some vulnerable popu-
lations from consideration for certain protections, such as asylum
(based on a well-founded fear of persecution in the foreign country) and
protection from domestic violence.
Such a sentence also divests immigration judges, in certain cases, of
discretion to consider circumstances that may militate against deporta-
tion, such as long-term residence in the U.S., past military service,
and others.
Unnecessary deportations adversely affect the financial and social
systems in New York. When New Yorkers - many of whom have been green
card holders for decades - are deported for lesser crimes and denied
consideration for immigration relief, families may become dependent on
social services and safety net assistance, children may have to forego
education, tax revenues decrease, and employers may experience signif-
icant difficulties due to a loss of qualified workers.
New York is home to one of the most diverse populations in the country.
More than twenty percent of New Yorkers are foreign born. Throughout
New York's history, immigrant populations have contributed immensely to
the economy and the cultural fabric of this state. Rigid immigration
consequences in the law should not be countenanced. The modest change in
this legislation will assure appropriate discretion for federal immi-
gration authorities in certain matters, and help protect this group of
non-citizens from arbitrary deportation and the denial of consideration
of individual circumstances.
LEGISLATIVE HISTORY:
Similar Bill - A. 4881 (2017) Crespo
FISCAL IMPLICATIONS:
NONE
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
5964
2019-2020 Regular Sessions
IN ASSEMBLY
February 20, 2019
___________
Introduced by M. of A. CRESPO -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to reducing certain sentences of imprisonment for misdemea-
nors to three hundred sixty-four days
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1 and 3 of section 70.15 of the penal law,
2 subdivision 1 as amended by chapter 291 of the laws of 1993, are amended
3 to read as follows:
4 1. Class A misdemeanor. A sentence of imprisonment for a class A
5 misdemeanor shall be a definite sentence. When such a sentence is
6 imposed the term shall be fixed by the court, and shall not exceed [one
7 year; provided, however, that a sentence of imprisonment imposed upon a
8 conviction of criminal possession of a weapon in the fourth degree as
9 defined in subdivision one of section 265.01 must be for a period of no
10 less than one year when the conviction was the result of a plea of guil-
11 ty entered in satisfaction of an indictment or any count thereof charg-
12 ing the defendant with the class D violent felony offense of criminal
13 possession of a weapon in the third degree as defined in subdivision
14 four of section 265.02, except that the court may impose any other
15 sentence authorized by law upon a person who has not been previously
16 convicted in the five years immediately preceding the commission of the
17 offense for a felony or a class A misdemeanor defined in this chapter,
18 if the court having regard to the nature and circumstances of the crime
19 and to the history and character of the defendant, finds on the record
20 that such sentence would be unduly harsh and that the alternative
21 sentence would be consistent with public safety and does not deprecate
22 the seriousness of the crime] three hundred sixty-four days.
23 3. Unclassified misdemeanor. A sentence of imprisonment for an unclas-
24 sified misdemeanor shall be a definite sentence. When such a sentence is
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05291-07-9
A. 5964 2
1 imposed the term shall be fixed by the court, and shall be in accordance
2 with the sentence specified in the law or ordinance that defines the
3 crime but, in any event, it shall not exceed three hundred sixty-four
4 days.
5 § 2. Section 70.15 of the penal law is amended by adding a new subdi-
6 vision 1-a to read as follows:
7 1-a. (a) Notwithstanding the provisions of any other law, whenever the
8 phrase "one year" or "three hundred sixty-five days" or "365 days" or
9 any similar phrase appears in any provision of this chapter or any other
10 law in reference to the definite sentence or maximum definite sentence
11 of imprisonment that is imposed, or has been imposed, or may be imposed
12 after enactment of this subdivision, for a misdemeanor conviction in
13 this state, such phrase shall mean, be interpreted and be applied as
14 three hundred sixty-four days.
15 (b) The amendatory provisions of this subdivision are ameliorative and
16 shall apply to all persons who are sentenced before, on or after the
17 effective date of this subdivision, for a crime committed before, on or
18 after the effective date of this subdivision.
19 (c) Any sentence for a misdemeanor conviction imposed prior to the
20 effective date of this subdivision that is a definite sentence of impri-
21 sonment of one year, or three hundred sixty-five days, shall, by opera-
22 tion of law, be changed to, mean and be interpreted and applied as a
23 sentence of three hundred sixty-four days. In addition to any other
24 right of a person to obtain a record of a proceeding against him or her,
25 a person so sentenced prior to the effective date of this subdivision
26 shall be entitled to obtain, from the criminal court or the clerk there-
27 of, a certificate of conviction, as described in subdivision one of
28 section 60.60 of the criminal procedure law, setting forth such sentence
29 as the sentence specified in this paragraph.
30 (d) Any sentence for a misdemeanor conviction imposed prior to the
31 effective date of this subdivision that is other than a definite
32 sentence of imprisonment of one year may be set aside, upon motion of
33 the defendant under section 440.20 of the criminal procedure law based
34 on a showing that the judgment and sentence under the law in effect at
35 the time of conviction imposed prior to the effective date of this
36 subdivision is likely to result in severe collateral consequences, in
37 order to permit the court to resentence the defendant in accordance with
38 the amendatory provisions of this subdivision.
39 (e) Resentence by operation of law is without prejudice to an individ-
40 ual seeking further relief pursuant to paragraph (i) of subdivision one
41 of section 440.10 of the criminal procedure law. Nothing in this section
42 is intended to diminish or abrogate any rights or remedies otherwise
43 available to the individual.
44 § 3. Paragraph (i) of subdivision 1 of section 440.10 of the criminal
45 procedure law, as amended by chapter 368 of the laws of 2015, the open-
46 ing paragraph as amended by chapter 189 of the laws of 2018, is amended
47 and a new paragraph (j) is added to read as follows:
48 (i) The judgment is a conviction where the arresting charge was under
49 section 240.37 (loitering for the purpose of engaging in a prostitution
50 offense, provided that the defendant was not alleged to be loitering for
51 the purpose of patronizing a person for prostitution or promoting pros-
52 titution) or 230.00 (prostitution) or 230.03 (prostitution in a school
53 zone) of the penal law, and the defendant's participation in the offense
54 was a result of having been a victim of sex trafficking under section
55 230.34 of the penal law, sex trafficking of a child under section
56 230.34-a of the penal law, labor trafficking under section 135.35 of the
A. 5964 3
1 penal law, aggravated labor trafficking under section 135.37 of the
2 penal law, compelling prostitution under section 230.33 of the penal
3 law, or trafficking in persons under the Trafficking Victims Protection
4 Act (United States Code, title 22, chapter 78); provided that
5 (i) a motion under this paragraph shall be made with due diligence,
6 after the defendant has ceased to be a victim of such trafficking or
7 compelling prostitution crime or has sought services for victims of such
8 trafficking or compelling prostitution crime, subject to reasonable
9 concerns for the safety of the defendant, family members of the defend-
10 ant, or other victims of such trafficking or compelling prostitution
11 crime that may be jeopardized by the bringing of such motion, or for
12 other reasons consistent with the purpose of this paragraph; and
13 (ii) official documentation of the defendant's status as a victim of
14 trafficking, compelling prostitution or trafficking in persons at the
15 time of the offense from a federal, state or local government agency
16 shall create a presumption that the defendant's participation in the
17 offense was a result of having been a victim of sex trafficking, compel-
18 ling prostitution or trafficking in persons, but shall not be required
19 for granting a motion under this paragraph[.]; or
20 (j) The judgment is a conviction for a class A or unclassified misde-
21 meanor entered prior to the effective date of this paragraph and satis-
22 fies the ground prescribed in paragraph (h) of this subdivision. There
23 shall be a rebuttable presumption that a conviction by plea to such an
24 offense was not knowing and voluntary, based on severe or ongoing colla-
25 teral consequences, including potential or actual immigration conse-
26 quences, and there shall be a rebuttable presumption that a conviction
27 by verdict constitutes cruel and unusual punishment under section five
28 of article one of the state constitution based on such consequences.
29 § 4. Section 440.10 of the criminal procedure law is amended by adding
30 a new subdivision 9 to read as follows:
31 9. Upon granting of such a motion, the court may either:
32 (a) With the consent of the people, vacate the judgment or modify the
33 judgment by reducing it to one of conviction for a lesser offense; or
34 (b) Vacate the judgment and order a new trial wherein the defendant
35 enters a plea to the same offense in order to permit the court to resen-
36 tence the defendant in accordance with the amendatory provisions of
37 subdivision one-a of section 70.15 of the penal law.
38 § 5. This act shall take effect immediately.
