senate Bill S3337A

Amended

Relates to sentencing and resentencing in domestic violence cases

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Bill Status


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

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Bill Details

See Assembly Version of this Bill:
A4314A
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 & 390.50, CP L
Versions Introduced in 2011-2012 Legislative Cycle:
S5436, A7874A

Sponsor Memo

BILL NUMBER:S3337A

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 § 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 §70.45 of the penal law to permit
determinate sentencing for persons sentenced pursuant to 0.12(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
pursuant 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 6 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 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
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 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 36 women convicted of murder
and released between 1985 and 2003, not a single one returned to
prison for a new crime within a 26-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
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:

None.

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 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--A

                       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 -- 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:

  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  490  OF  THIS  CHAPTER,  OR  FOR  AN
OFFENSE  WHICH  WOULD  REQUIRE SUCH PERSON TO REGISTER AS A SEX OFFENDER
PURSUANT TO ARTICLE 6-C OF THE CORRECTION LAW, AN ATTEMPT OR  CONSPIRACY
TO  COMMIT  ANY  SUCH  OFFENSE 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 SUBDIVI-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06253-02-3

S. 3337--A                          2

SION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW; (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 fami-
ly  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 indetermi-
nate  sentence  of  imprisonment in accordance with subdivisions two and
three of this section.] HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF
THE CRIME AND TO THE HISTORY, CHARACTER AND CONDITION OF THE  DEFENDANT,
THAT  A  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--A                          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.  (A)  NOTWITHSTANDING  ANY  CONTRARY  PROVISION  OF LAW, ANY PERSON
CONFINED IN AN INSTITUTION OPERATED BY THE DEPARTMENT OF CORRECTION  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 PURSUANT TO

S. 3337--A                          4

SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER THE  EFFECTIVE  DATE  OF
THIS  SECTION,  SUBMIT  TO THE JUDGE OR JUSTICE WHO IMPOSED THE ORIGINAL
SENTENCE UPON SUCH PERSON A REQUEST TO APPLY FOR RESENTENCING IN ACCORD-
ANCE  WITH  SECTION  60.12 OF THE PENAL LAW. SUCH PERSON MUST INCLUDE IN
HIS OR HER REQUEST DOCUMENTATION PROVING THAT SHE OR HE IS  CONFINED  IN
AN  INSTITUTION  OPERATED BY 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 THE EFFECTIVE DATE
OF  THIS  SECTION  AND  THAT  SHE OR HE IS SERVING SUCH SENTENCE FOR ANY
OFFENSE ELIGIBLE FOR AN ALTERNATIVE SENTENCE UNDER SECTION 60.12 OF  THE
PENAL LAW.
  (B) IF, AT THE TIME OF SUCH PERSON'S REQUEST TO APPLY FOR RESENTENCING
PURSUANT  TO THIS SECTION, THE ORIGINAL SENTENCING 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
REQUEST  SHALL  BE  RANDOMLY ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE
COURT IN WHICH THE  ORIGINAL  SENTENCE  WAS  IMPOSED.  IF  THE  ORIGINAL
SENTENCING JUDGE IS NO LONGER A JUDGE OR JUSTICE OF A COURT OF COMPETENT
JURISDICTION,  THEN  THE  REQUEST  SHALL BE RANDOMLY ASSIGNED TO ANOTHER
JUDGE OR JUSTICE OF THE COURT.
  (C) IF THE COURT FINDS THAT SUCH PERSON HAS MET  THE  REQUIREMENTS  TO
APPLY  FOR  RESENTENCING  IN  PARAGRAPH  A  OF  SUBDIVISION  ONE OF THIS
SECTION, THE COURT SHALL NOTIFY SUCH PERSON THAT HE OR SHE MAY SUBMIT AN
APPLICATION FOR RESENTENCING. UPON SUCH  NOTIFICATION,  THE  PERSON  MAY
REQUEST THAT THE COURT ASSIGN HIM OR HER AN ATTORNEY FOR THE PREPARATION
OF  AND PROCEEDINGS ON THE APPLICATION FOR RESENTENCING PURSUANT TO THIS
SECTION.  THE  ATTORNEY  SHALL  BE  ASSIGNED  IN  ACCORDANCE  WITH   THE
PROVISIONS  OF  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.
  (D)  IF  THE COURT FINDS THAT SUCH PERSON HAS NOT MET THE REQUIREMENTS
TO APPLY FOR RESENTENCING IN PARAGRAPH A  OF  SUBDIVISION  ONE  OF  THIS
SECTION,  THE  COURT  SHALL  NOTIFY  SUCH  PERSON AND DISMISS HIS OR HER
REQUEST WITHOUT PREJUDICE.
  2. (A) UPON THE COURT'S RECEIPT OF AN  APPLICATION  FOR  RESENTENCING,
THE  COURT  SHALL  PROMPTLY NOTIFY THE APPROPRIATE DISTRICT ATTORNEY AND
PROVIDE SUCH DISTRICT ATTORNEY WITH A COPY OF THE APPLICATION.
  (B) IF THE JUDGE OR JUSTICE THAT RECEIVED THE APPLICATION IS  NOT  THE
ORIGINAL SENTENCING JUDGE OR JUSTICE, THE APPLICATION MAY BE REFERRED TO
THE  ORIGINAL  SENTENCING  JUDGE OR JUSTICE PROVIDED THAT HE OR SHE IS A
JUDGE OR JUSTICE OF A COURT  OF  COMPETENT  JURISDICTION  AND  THAT  THE
APPLICANT AND THE DISTRICT ATTORNEY AGREE THAT THE APPLICATION SHOULD BE
REFERRED.
  (C)  AN  APPLICATION  FOR  RESENTENCING  PURSUANT TO THIS SECTION MUST
INCLUDE AT LEAST TWO PIECES OF EVIDENCE  CORROBORATING  THE  APPLICANT'S
CLAIM THAT HE OR SHE WAS, AT THE TIME OF THE OFFENSE, A VICTIM OF DOMES-
TIC  VIOLENCE SUBJECTED TO SUBSTANTIAL PHYSICAL, SEXUAL OR PSYCHOLOGICAL
ABUSE INFLICTED BY A MEMBER OF THE  SAME  FAMILY  OR  HOUSEHOLD  AS  THE
APPLICANT  AS  SUCH TERM IS DEFINED IN SUBDIVISION ONE OF SECTION 530.11
OF THIS CHAPTER.
  AT LEAST ONE PIECE OF EVIDENCE MUST BE EITHER A COURT RECORD, PRE-SEN-
TENCE REPORT, SOCIAL SERVICES RECORD, HOSPITAL RECORD,  SWORN  STATEMENT
FROM  A WITNESS TO THE DOMESTIC VIOLENCE, LAW ENFORCEMENT RECORD, DOMES-
TIC INCIDENT REPORT,  OR  ORDER  OF  PROTECTION.    OTHER  EVIDENCE  MAY
INCLUDE,  BUT  SHALL  NOT  BE  LIMITED TO, LOCAL AND STATE DEPARTMENT OF
CORRECTIONS RECORDS, A SHOWING BASED IN PART ON  DOCUMENTATION  PREPARED

S. 3337--A                          5

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  VERIFI-
CATION  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.
  (D)  IF  THE  COURT FINDS THAT THE APPLICANT HAS NOT COMPLIED WITH THE
PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THE COURT SHALL DISMISS
THE APPLICATION WITHOUT PREJUDICE.
  (E) IF THE COURT FINDS  THAT  THE  APPLICANT  HAS  COMPLIED  WITH  THE
PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THE COURT SHALL CONDUCT
A  HEARING  TO  AID IN MAKING ITS DETERMINATION OF WHETHER THE APPLICANT
SHOULD BE RESENTENCED IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW.
AT SUCH HEARING THE COURT SHALL DETERMINE ANY CONTROVERTED ISSUE OF FACT
RELEVANT TO THE ISSUE OF SENTENCING. RELIABLE HEARSAY SHALL BE  ADMISSI-
BLE AT SUCH HEARINGS.
  THE COURT MAY CONSIDER ANY FACT OR CIRCUMSTANCES RELEVANT TO THE IMPO-
SITION  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
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.
  (F)  IF  THE  COURT  DETERMINES THAT THE APPLICANT IS NOT ELIGIBLE FOR
RESENTENCING IN ACCORDANCE WITH SECTION 60.12  OF  THE  PENAL  LAW,  THE
COURT  SHALL  INFORM  SUCH  APPLICANT OF ITS DECISION AND SHALL ENTER AN
ORDER TO THAT EFFECT. ANY ORDER ISSUED  BY  A  COURT  PURSUANT  TO  THIS
SECTION  MUST  INCLUDE WRITTEN FINDINGS OF FACT AND THE REASONS FOR SUCH
ORDER.
  (G) IF THE COURT DETERMINES THAT THE APPLICANT SHOULD  BE  RESENTENCED
IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW, THE COURT SHALL NOTI-
FY  THE  APPLICANT  THAT,  UNLESS HE OR SHE WITHDRAWS 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 WRITTEN FINDINGS OF FACT AND
THE REASONS FOR SUCH ORDER.
  3.  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.  AN  APPEAL  IN  ACCORDANCE  WITH THE APPLICABLE PROVISIONS OF THIS
CHAPTER MAY ALSO BE TAKEN AS OF RIGHT BY THE  APPLICANT  FROM  AN  ORDER
SPECIFYING  AND  INFORMING SUCH APPLICANT OF THE TERM OF THE DETERMINATE

S. 3337--A                          6

SENTENCE THE COURT WOULD IMPOSE UPON RESENTENCING ON THE GROUND THAT THE
TERM OF THE PROPOSED SENTENCE IS HARSH OR EXCESSIVE; 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. THE APPLICANT MAY REQUEST THAT THE  COURT  ASSIGN
HIM  OR  HER  AN  ATTORNEY FOR THE PREPARATION OF AND PROCEEDINGS ON ANY
APPEALS REGARDING HIS OR HER APPLICATION FOR  RESENTENCING  PURSUANT  TO
THIS  SECTION.  THE  ATTORNEY  SHALL  BE ASSIGNED IN ACCORDANCE WITH THE
PROVISIONS OF 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.
  4. 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-
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. Paragraph (a) of subdivision 2 of section 390.50 of the  criminal
procedure  law,  as amended by section 5 of part OO of chapter 56 of the
laws of 2010, is amended to read as follows:
  (a) Not less than one court day prior to sentencing, unless such  time
requirement  is  waived by the parties, the pre-sentence report or memo-
randum shall be made available by the  court  for  examination  and  for
copying by the defendant's attorney, the defendant himself, if he has no
attorney,  and  the  prosecutor. In its discretion, the court may except
from disclosure a part or parts of the report or memoranda which are not
relevant to a proper sentence, or a diagnostic opinion which might seri-
ously disrupt a program of rehabilitation,  or  sources  of  information
which  have  been obtained on a promise of confidentiality, or any other
portion thereof, disclosure of which would not be  in  the  interest  of
justice.  In  all cases where a part or parts of the report or memoranda
are not disclosed, the court shall state for the record that a  part  or
parts  of the report or memoranda have been excepted and the reasons for
its action. The action of the court excepting information  from  disclo-
sure shall be subject to appellate review. The pre-sentence report shall
be made available by the court for examination and copying in connection

S. 3337--A                          7

with any appeal in the case, including an appeal under this subdivision.
Upon  written  request,  the  court shall make a copy of the presentence
report, other than a part or parts of the report redacted by  the  court
pursuant  to  this  paragraph, available to the defendant for use before
the parole board for release consideration or  an  appeal  of  a  parole
board  determination  OR  AN  APPLICATION  FOR  RESENTENCING PURSUANT TO
SECTION 440.46 OR 440.47 OF THIS CHAPTER. In his or her written  request
to  the  court  the defendant shall affirm that he or she anticipates an
appearance before the parole board or intends to file an  administrative
appeal of a parole board determination OR MEETS THE ELIGIBILITY CRITERIA
FOR  AND INTENDS TO FILE A MOTION FOR RESENTENCING PURSUANT TO 440.46 OF
THIS CHAPTER OR HAS RECEIVED NOTIFICATION FROM THE COURT WHICH  RECEIVED
HIS  OR HER REQUEST TO APPLY FOR RESENTENCING PURSUANT TO SECTION 440.47
OF THIS CHAPTER CONFIRMING THAT HE OR  SHE  IS  ELIGIBLE  TO  SUBMIT  AN
APPLICATION FOR RESENTENCING PURSUANT TO SECTION 440.47 OF THIS CHAPTER.
The court shall respond to the defendant's written request within twenty
days from receipt of the defendant's written request.
  S 6. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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