senate Bill S3337

Amended

Relates to sentencing and resentencing in domestic violence cases

download pdf

Sponsor

Co-Sponsors

view all co-sponsors

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 01 / Feb / 2013
    • REFERRED TO CODES
  • 22 / Mar / 2013
    • AMEND AND RECOMMIT TO CODES
  • 22 / Mar / 2013
    • PRINT NUMBER 3337A
  • 13 / May / 2013
    • AMEND AND RECOMMIT TO CODES
  • 13 / May / 2013
    • PRINT NUMBER 3337B
  • 08 / Jan / 2014
    • REFERRED TO CODES
  • 09 / Apr / 2014
    • AMEND AND RECOMMIT TO CODES
  • 09 / Apr / 2014
    • PRINT NUMBER 3337C

Summary

Relates to sentencing and resentencing in domestic violence cases.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A4314
Versions:
S3337
S3337A
S3337B
S3337C
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §§60.12 & 70.45, Pen L; add §440.47, amd §450.90, CP L
Versions Introduced in 2011-2012 Legislative Cycle:
S5436, A7874A

Sponsor Memo

BILL NUMBER:S3337

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 sentenc-
ing 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 § 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 570.45 of the penal law to permit determi-
nate sentencing for persons sentenced pursuant to0.12(5).

Section 3 of the bill adds a new § 440.47 to the criminal procedure law
to allow currently incarcerated persons to apply for resentencing pursu-
ant to 560.12 of the penal law.

Section 4 of the bill amends § 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 inextri-
cably 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 recog-
nized 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 deter-
mining 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 rose 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 defend-
ant if s/he finds that: (1) the defendant was, at the time of the
offense, a victim of domestic violence subjected to substantial phys-
ical, sexual or psychological abuse inflicted by a member of the "same
family or household" as the defendant as that term is defined in subdi-
vision one of section 530.11 of the criminal procedure law; (2) the
abuse was a "significant contributing factor" to the defendant's partic-
ipation 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 resen-
tencing eligibility for an incarcerated survivor who submits a resen-
tencing application to the court. In order to be considered for eligi-
bility, an incarcerated survivor is also required to include evidence
corroborating the claim she was, at the time of tile 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 1998
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 participat-
ing 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 alterna-
tive to incarceration program in New York City is only $11,000. Alter-
native programs save taxpayers tens of thousands of dollars per person
each year while helping to build healthy and safe individuals and commu-
nities.

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 abuse she
suffers - in part because the very lack of adequate protection, inter-
vention 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 like-
lihood of survivors being victimized by the very system that should help
protect them.

PRIOR LEGISLATIVE HISTORY: None.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Given that this
legislation may result in: (1) alternative sentences and non-incarcera-
tive 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 legislation would take 120 days after enactment.

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

                                  3337

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sens. HASSELL-THOMPSON, ADAMS, ADDABBO, AVELLA, BRESLIN,
  CARLUCCI, DILAN, ESPAILLAT, GRISANTI, KENNEDY, KLEIN,  KRUEGER,  MONT-
  GOMERY,  PARKER,  PERALTA,  PERKINS, RIVERA, SAMPSON, SAVINO, SERRANO,
  STAVISKY, STEWART-COUSINS -- read twice and ordered printed, and  when
  printed to be committed to the Committee on Codes

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:

  Section  1.  Section  60.12 of the penal law, as added by chapter 1 of
the laws of 1998, is amended to read as follows:
S 60.12 Authorized disposition; alternative [indeterminate] sentence [of
          imprisonment]; domestic violence cases.
  1. Notwithstanding any other provision of law, where a court is impos-
ing sentence UPON A PERSON pursuant to  section  70.00,  70.02  [upon  a
conviction for an offense enumerated in subdivision one of such section]
OR  70.06  OF  THIS TITLE, other than FOR an offense defined in [article
one hundred thirty of this chapter] SECTION 125.26, 125.27,  SUBDIVISION
FIVE  OF SECTION 125.25, OR ARTICLE FOUR HUNDRED NINETY OF THIS CHAPTER,
AN ATTEMPT OR CONSPIRACY TO COMMIT  ANY  SUCH  OFFENSE,  OR  WHERE  SUCH
PERSON  IS  REQUIRED  TO  REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE
SIX-C OF THE CORRECTION LAW, and is authorized or required  pursuant  to
[such  section] SECTIONS 70.00, 70.02 OR 70.06 to impose a [determinate]
sentence of imprisonment [for such offense], the court, upon a  determi-
nation following a hearing that
  (a)  AT  THE  TIME  OF  THE INSTANT OFFENSE, the defendant was [the] A
victim of DOMESTIC VIOLENCE SUBJECTED TO SUBSTANTIAL physical, sexual or
psychological abuse [by the victim or intended victim of such  offense,]
INFLICTED  BY  A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT
AS SUCH TERM IS DEFINED IN SUBDIVISION ONE  OF  SECTION  530.11  OF  THE
CRIMINAL PROCEDURE LAW;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06253-01-3

S. 3337                             2

  (b)  such  abuse was a SIGNIFICANT CONTRIBUTING factor [in causing the
defendant to commit such offense  and]    TO  THE  DEFENDANT'S  CRIMINAL
BEHAVIOR;
  (c) [the victim or intended victim of such offense was a member of the
same  family  or  household  as the defendant as such term is defined in
subdivision one of section 530.11 of the criminal procedure law, may, in
lieu of imposing such determinate sentence of  imprisonment,  impose  an
indeterminate  sentence  of imprisonment in accordance with subdivisions
two and three of this section.] HAVING REGARD FOR THE NATURE AND CIRCUM-
STANCES OF THE CRIME AND THE HISTORY, CHARACTER  AND  CONDITION  OF  THE
DEFENDANT,  THAT THE SENTENCE OF IMPRISONMENT PURSUANT TO SECTION 70.00,
70.02 OR 70.06 OF THIS TITLE WOULD BE UNDULY HARSH MAY INSTEAD IMPOSE  A
SENTENCE  IN  ACCORDANCE WITH SUBDIVISION TWO, THREE, FOUR, FIVE, SIX OR
SEVEN OF THIS SECTION.
  A COURT MAY  DETERMINE  THAT  SUCH  ABUSE  CONSTITUTES  A  SIGNIFICANT
CONTRIBUTING  FACTOR  PURSUANT  TO  PARAGRAPH  (B)  OF  THIS SUBDIVISION
REGARDLESS OF WHETHER THE DEFENDANT RAISED A DEFENSE PURSUANT TO ARTICLE
THIRTY-FIVE, ARTICLE FORTY, OR SUBDIVISION ONE OF SECTION 125.25 OF THIS
CHAPTER.
  AT THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE  SENTENCED
PURSUANT  TO  THIS  SECTION,  THE  COURT SHALL CONSIDER ORAL AND WRITTEN
ARGUMENTS, TAKE TESTIMONY FROM WITNESSES OFFERED BY  EITHER  PARTY,  AND
CONSIDER  RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION. RELI-
ABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS.
  2. [The maximum term of an indeterminate sentence imposed pursuant  to
subdivision  one of this section must be fixed by the court as follows:]
WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  PURSUANT
TO SECTION 70.02 OF THIS TITLE, THE COURT MAY IMPOSE A DEFINITE SENTENCE
OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE
PROVISIONS  OF  SECTION 65.00 OF THIS TITLE, OR MAY FIX A TERM OF IMPRI-
SONMENT AS FOLLOWS:
  (a) For a class B felony, the term must be at least  [six  years]  ONE
YEAR and must not exceed [twenty-five] FIVE years;
  (b) For a class C felony, the term must be at least [four and one-half
years] ONE YEAR and must not exceed [fifteen] THREE AND ONE-HALF years;
  (c)  For a class D felony, the term must be at least [three years] ONE
YEAR and must not exceed [seven] TWO years; and
  (d) For a class E felony, the term must be [at least three years]  ONE
YEAR and must not exceed [four] ONE AND ONE-HALF years.
  3. [The minimum period of imprisonment under an indeterminate sentence
imposed pursuant to subdivision one of this section must be fixed by the
court  at  one-half of the maximum term imposed and must be specified in
the sentence] WHERE A COURT WOULD OTHERWISE  BE  REQUIRED  TO  IMPOSE  A
SENTENCE  FOR A CLASS A FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE OR TO SUBDIVISION TWO OR THREE OF SECTION 70.71 OF THIS TITLE, THE
COURT MAY FIX A TERM OF IMPRISONMENT OF AT LEAST FIVE YEARS AND  NOT  TO
EXCEED FIFTEEN YEARS.
  4.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION SIX OF SECTION 70.06 OF THIS  TITLE,  THE  COURT
MAY FIX A TERM OF IMPRISONMENT AS FOLLOWS:
  (A)  FOR  A  CLASS B FELONY, THE TERM MUST BE AT LEAST THREE YEARS AND
MUST NOT EXCEED EIGHT YEARS;
  (B) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWO  AND  ONE-HALF
YEARS AND MUST NOT EXCEED FIVE YEARS;
  (C) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWO YEARS AND MUST
NOT EXCEED THREE YEARS;

S. 3337                             3

  (D)  FOR  A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF
YEARS AND MUST NOT EXCEED TWO YEARS.
  5.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
A CLASS B, C, D OR E FELONY OFFENSE PURSUANT TO SECTION  70.00  OF  THIS
TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH THE PROVISIONS
OF SUBDIVISION TWO OF SECTION 70.70 OF THIS TITLE.
  6.  EXCEPT  AS  PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION, WHERE A
COURT WOULD OTHERWISE BE REQUIRED  TO  IMPOSE  A  SENTENCE  PURSUANT  TO
SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, THE COURT MAY IMPOSE A
SENTENCE  IN  ACCORDANCE  WITH  THE  PROVISIONS  OF SUBDIVISION THREE OF
SECTION 70.70 OF THIS TITLE.
  7. WHERE A COURT WOULD OTHERWISE BE  REQUIRED  TO  IMPOSE  A  SENTENCE
PURSUANT  TO SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, WHERE THE
PRIOR FELONY CONVICTION WAS FOR A  FELONY  OFFENSE  DEFINED  IN  SECTION
70.02  OF THIS TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH
THE PROVISIONS OF SUBDIVISION FOUR OF SECTION 70.70 OF THIS TITLE.
  S 2. Paragraphs (a), (b), (c), (d), (e) and (f) of  subdivision  2  of
section  70.45  of the penal law, as amended by chapter 7 of the laws of
2007, are amended to read as follows:
  (a) such period shall be one year whenever a determinate  sentence  of
imprisonment  is imposed pursuant to subdivision two of section 70.70 of
this article OR SUBDIVISION FIVE OF SECTION 60.12 OF THIS TITLE  upon  a
conviction of a class D or class E felony offense;
  (b)  such  period  shall  be  not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed  pursu-
ant  to  subdivision two of section 70.70 of this article OR SUBDIVISION
FIVE OF SECTION 60.12 OF THIS TITLE upon a conviction of a  class  B  or
class C felony offense;
  (c)  such  period  shall  be  not less than one year nor more than two
years whenever a determinate sentence of imprisonment is imposed  pursu-
ant  to  subdivision  three  or four of section 70.70 of this article OR
SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon  conviction
of a class D or class E felony offense;
  (d) such period shall be not less than one and one-half years nor more
than  three  years  whenever  a  determinate sentence of imprisonment is
imposed pursuant to subdivision three or four of section 70.70  of  this
article  OR SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon
conviction of a class B felony or class C felony offense;
  (e) such period shall be not less than one and one-half years nor more
than three years whenever a  determinate  sentence  of  imprisonment  is
imposed  pursuant  to subdivision three of section 70.02 of this article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class D or class E violent felony offense;
  (f) such period shall be not less than two and one-half years nor more
than five years whenever  a  determinate  sentence  of  imprisonment  is
imposed  pursuant  to subdivision three of section 70.02 of this article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class B or class C violent felony offense.
  S 3. The criminal procedure law is amended by  adding  a  new  section
440.47 to read as follows:
S 440.47 MOTION FOR RESENTENCE; DOMESTIC VIOLENCE CASES.
  1.  NOTWITHSTANDING  ANY  CONTRARY  PROVISION OF LAW, ON THE EFFECTIVE
DATE OF THIS SECTION, ANY PERSON IN THE CUSTODY  OF  THE  DEPARTMENT  OF
CORRECTIONS  AND COMMUNITY SUPERVISION SERVING A SENTENCE WITH A MINIMUM
OR DETERMINATE TERM OF EIGHT YEARS OR  MORE  FOR  AN  OFFENSE  COMMITTED
PRIOR  TO  SUCH  EFFECTIVE DATE AND ELIGIBLE FOR AN ALTERNATIVE SENTENCE

S. 3337                             4

PURSUANT TO SECTION 60.12 OF THE PENAL LAW MAY SUBMIT AN APPLICATION  TO
BE  RESENTENCED IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW IN THE
COURT WHICH IMPOSED THE ORIGINAL SENTENCE.
  SUCH  APPLICATION  FOR  RESENTENCING  UNDER  THIS SECTION MUST INCLUDE
EVIDENCE CORROBORATING SUCH PERSON'S CLAIM THAT HE OR SHE  WAS,  AT  THE
TIME  OF THE COMMITMENT OFFENSE, A VICTIM OF DOMESTIC VIOLENCE SUBJECTED
TO SUBSTANTIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL ABUSE  INFLICTED  BY  A
MEMBER OF HIS OR HER SAME FAMILY OR HOUSEHOLD AS SUCH TERM IS DEFINED IN
SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER.
  SUCH EVIDENCE MAY INCLUDE, BUT SHALL NOT BE LIMITED TO, WITNESS STATE-
MENTS,  COURT  RECORDS,  PRE-SENTENCE  REPORTS, SOCIAL SERVICES RECORDS,
CITY AND STATE  DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY  SUPERVISION
RECORDS,  HOSPITAL  RECORDS,  LAW ENFORCEMENT RECORDS, DOMESTIC INCIDENT
REPORTS, ORDERS OF PROTECTION, A SHOWING BASED IN PART ON  DOCUMENTATION
PREPARED  AT  OR  NEAR  THE TIME OF THE COMMISSION OF THE OFFENSE OR THE
PROSECUTION THEREOF TENDING TO SUPPORT THE PERSON'S CLAIM, OR WHEN THERE
IS VERIFICATION OF CONSULTATION WITH A LICENSED MEDICAL OR MENTAL HEALTH
CARE PROVIDER, EMPLOYEE OF A COURT ACTING WITHIN THE SCOPE OF HIS OR HER
EMPLOYMENT, MEMBER OF THE  CLERGY,  ATTORNEY,  SOCIAL  WORKER,  OR  RAPE
CRISIS  COUNSELOR  AS  DEFINED  IN SECTION FORTY-FIVE HUNDRED TEN OF THE
CIVIL PRACTICE LAW AND RULES, OR OTHER ADVOCATE ACTING ON BEHALF  OF  AN
AGENCY  THAT  ASSISTS  VICTIMS  OF  DOMESTIC VIOLENCE FOR THE PURPOSE OF
ASSISTING SUCH  PERSON  WITH  DOMESTIC  VIOLENCE  VICTIM  COUNSELING  OR
SUPPORT.
  2.  THE  APPLICATION  FOR  RESENTENCING SHALL BE REFERRED FOR DETERMI-
NATION TO THE JUDGE OR JUSTICE WHO IMPOSED THE  ORIGINAL  SENTENCE  UPON
THE APPLICANT. IF, AT THE TIME OF THE APPLICATION, THE ORIGINAL SENTENC-
ING  JUDGE  OR  JUSTICE  IS  A  JUDGE OR JUSTICE OF A COURT OF COMPETENT
JURISDICTION, BUT SUCH COURT IS NOT THE  COURT  IN  WHICH  THE  ORIGINAL
SENTENCE WAS IMPOSED, THEN THE APPLICATION SHALL BE RANDOMLY ASSIGNED TO
ANOTHER JUDGE OR JUSTICE OF THE COURT IN WHICH THE ORIGINAL SENTENCE WAS
IMPOSED,  PROVIDED  THAT  THE  DISTRICT ATTORNEY AND APPLICANT MAY AGREE
THAT THE APPLICATION BE REFERRED TO THE ORIGINAL  SENTENCING  JUDGE.  IF
THE ORIGINAL SENTENCING JUDGE IS NO LONGER A JUDGE OR JUSTICE OF A COURT
OF  COMPETENT  JURISDICTION,  THEN  THE  APPLICATION  SHALL  BE RANDOMLY
ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE COURT.
  3. IF, IN REVIEWING THE APPLICATION, THE  COURT  DETERMINES  THAT  THE
APPLICANT  DOES NOT STAND CONVICTED OF AN OFFENSE ELIGIBLE FOR AN ALTER-
NATIVE SENTENCE PURSUANT TO SECTION 60.12 OF THE PENAL LAW  OR  HAS  NOT
COMPLIED  WITH  THE  PROVISIONS  OF SUBDIVISION ONE OF THIS SECTION, THE
COURT SHALL ISSUE AN ORDER DISMISSING THE APPLICATION WITHOUT PREJUDICE.
  4. (A) UPON THE COURT'S ACCEPTANCE OF THE APPLICATION, THE COURT SHALL
PROMPTLY NOTIFY THE  APPROPRIATE  DISTRICT  ATTORNEY  AND  PROVIDE  SUCH
DISTRICT ATTORNEY WITH A COPY OF THE PETITION.
  (B) AFTER SUCH NOTIFICATION, THE COURT MAY CONDUCT A HEARING TO AID IN
MAKING  ITS  DETERMINATION  OF  WHETHER THE APPLICANT MEETS THE CRITERIA
ESTABLISHED IN SUBDIVISION ONE OF SECTION 60.12 OF  THE  PENAL  LAW  AND
SHOULD  BE  RESENTENCED  PURSUANT  TO  THIS SECTION. AT SUCH HEARING THE
COURT SHALL DETERMINE ANY CONTROVERTED ISSUE OF FACT RELEVANT  TO  THESE
CRITERIA  AND  TO  THE  ISSUE  OF  SENTENCING. RELIABLE HEARSAY SHALL BE
ADMISSIBLE AT SUCH HEARINGS.
  (C) THE COURT MAY CONSIDER ANY FACTS OR CIRCUMSTANCES RELEVANT TO  THE
IMPOSITION OF A NEW SENTENCE WHICH ARE SUBMITTED BY THE APPLICANT OR THE
DISTRICT  ATTORNEY  AND  MAY,  IN  ADDITION,  CONSIDER THE INSTITUTIONAL
RECORD OF CONFINEMENT OF SUCH PERSON, BUT SHALL NOT ORDER A NEW PRE-SEN-
TENCE INVESTIGATION AND REPORT OR ENTERTAIN ANY MATTER  CHALLENGING  THE

S. 3337                             5

UNDERLYING BASIS OF THE SUBJECT CONVICTION. THE COURT'S CONSIDERATION OF
THE INSTITUTIONAL RECORD OF CONFINEMENT OF SUCH APPLICANT SHALL INCLUDE,
BUT  NOT BE LIMITED TO, SUCH APPLICANT'S PARTICIPATION IN OR WILLINGNESS
TO  PARTICIPATE  IN PROGRAMMING SUCH AS DOMESTIC VIOLENCE, PARENTING AND
SUBSTANCE ABUSE TREATMENT WHILE INCARCERATED AND SUCH APPLICANT'S DISCI-
PLINARY HISTORY. THE FACT THAT THE APPLICANT MAY  HAVE  BEEN  UNABLE  TO
PARTICIPATE IN TREATMENT OR OTHER PROGRAMMING WHILE INCARCERATED DESPITE
SUCH APPLICANT'S WILLINGNESS TO DO SO SHALL NOT BE CONSIDERED A NEGATIVE
FACTOR IN DETERMINING A MOTION PURSUANT TO THIS SECTION.
  (D)  IF  THE COURT DETERMINES, AFTER REVIEW OF THE SUBMISSIONS AND THE
FINDINGS OF FACT MADE IN CONNECTION  WITH  THE  APPLICATION,  THAT  SUCH
APPLICANT  MEETS  THE CRITERIA ESTABLISHED IN SUBDIVISION ONE OF SECTION
60.12 OF THE PENAL LAW  AND  SHOULD  BE  RESENTENCED  PURSUANT  TO  THIS
SECTION,  THE  COURT  SHALL INFORM SUCH APPLICANT OF THE NEW SENTENCE IT
WOULD IMPOSE UPON SUCH CONVICTION, AS AUTHORIZED BY SECTION 60.12 OF THE
PENAL LAW, AND SHALL ENTER AN ORDER TO THAT EFFECT. IF THE COURT  DETER-
MINES  THAT SUCH PERSON DOES NOT MEET THE CRITERIA ESTABLISHED IN SUBDI-
VISION ONE OF SECTION 60.12 OF THE PENAL LAW AND SHOULD  NOT  BE  RESEN-
TENCED,  THE COURT SHALL INFORM SUCH APPLICANT OF ITS DECISION AND SHALL
ENTER AN ORDER TO THAT EFFECT.
  (E) THE COURT SHALL NOTIFY THE APPLICANT THAT, UNLESS HE OR SHE  WITH-
DRAWS  THE  APPLICATION OR APPEALS FROM SUCH ORDER, THE COURT WILL ENTER
AN ORDER VACATING THE SENTENCE ORIGINALLY IMPOSED AND IMPOSING  THE  NEW
SENTENCE  TO BE IMPOSED AS AUTHORIZED BY SECTION 60.12 OF THE PENAL LAW.
ANY ORDER ISSUED BY A COURT PURSUANT TO THIS SECTION MUST INCLUDE  WRIT-
TEN FINDINGS OF FACT AND THE REASONS FOR SUCH ORDER.
  5.  AN  APPEAL  MAY BE TAKEN AS OF RIGHT IN ACCORDANCE WITH APPLICABLE
PROVISIONS OF THIS CHAPTER: (A) FROM AN ORDER DENYING  RESENTENCING;  OR
(B) FROM A NEW SENTENCE IMPOSED UNDER THIS PROVISION AND MAY BE BASED ON
THE GROUNDS THAT (I) THE TERM OF THE NEW SENTENCE IS HARSH OR EXCESSIVE;
OR (II) THAT THE TERM OF THE NEW SENTENCE IS UNAUTHORIZED AS A MATTER OF
LAW.  UPON  REMAND  TO  THE  SENTENCING  COURT FOLLOWING SUCH APPEAL THE
APPLICANT SHALL BE GIVEN AN OPPORTUNITY TO WITHDRAW AN  APPLICATION  FOR
RESENTENCING BEFORE ANY RESENTENCE IS IMPOSED.
  6.  SUBDIVISION ONE OF SECTION SEVEN HUNDRED SEVENTEEN AND SUBDIVISION
FOUR OF SECTION SEVEN HUNDRED TWENTY-TWO  OF  THE  COUNTY  LAW  AND  THE
RELATED  PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW SHALL APPLY TO THE
PREPARATION OF AND PROCEEDINGS ON APPLICATIONS PURSUANT TO THIS SECTION,
INCLUDING ANY APPEALS.
  7. IN CALCULATING THE NEW TERM TO BE SERVED BY THE APPLICANT  PURSUANT
TO  SECTION 60.12 OF THE PENAL LAW, SUCH APPLICANT SHALL BE CREDITED FOR
ANY JAIL TIME CREDITED TOWARDS THE SUBJECT CONVICTION  AS  WELL  AS  ANY
PERIOD OF INCARCERATION CREDITED TOWARD THE SENTENCE ORIGINALLY IMPOSED.
  S 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
amended  by section 10 of part AAA of chapter 56 of the laws of 2009, is
amended to read as follows:
  1. Provided that a certificate granting  leave  to  appeal  is  issued
pursuant  to section 460.20, an appeal may, except as provided in subdi-
vision two, be taken to the court of appeals by either the defendant  or
the  people from any adverse or partially adverse order of an intermedi-
ate appellate court entered upon an appeal taken  to  such  intermediate
appellate  court  pursuant to section 450.10, 450.15, or 450.20, or from
an order granting or denying a motion to set aside an order of an inter-
mediate appellate court on  the  ground  of  ineffective  assistance  or
wrongful deprivation of appellate counsel, or by either the defendant or
the  people from any adverse or partially adverse order of an intermedi-

S. 3337                             6

ate appellate court entered upon an appeal taken  to  such  intermediate
appellate  court  from  an  order  entered pursuant to section 440.46 OR
SECTION 440.47 of this chapter. An order of  an  intermediate  appellate
court  is  adverse to the party who was the appellant in such court when
it affirms the judgment, sentence or order appealed from, and is adverse
to the party who was the respondent in such court when it  reverses  the
judgment,  sentence  or  order  appealed  from. An appellate court order
which modifies a judgment or order appealed from is partially adverse to
each party.
  S 5. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.