BILL NUMBER:  S5645

 TITLE OF BILL :

An act to amend the correction law, in relation to erroneous sentence
notifications


 PURPOSE :

This bill would ensure that sentencing courts are timely notified of
erroneous sentences imposed upon inmates received at a state
correctional facility, and clarify the procedure by which erroneously
sentenced inmates are produced in court for resentencing.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would amend Correction Law § 601-a to require
the Department of Correctional Services (DOCS) to notify the District
Attorney, defense counsel and the sentencing court when it receives a
defendant who has been erroneously sentenced, and would clarify that
the court and/or the District Attorney would be responsible for
providing DOCS with an order to produce such a defendant in court for
resentencing.

Section 2 of the bill sets forth the effective date.
              

 EXISTING LAW :

Correction Law § 601-a currently provides that when DOCS becomes aware
that a person in its custody has been erroneously sentenced, it must
notify the District Attorney in the county in which the inmate was
sentenced, who shall then conduct an investigation. If the District
Attorney believes that the person has been erroneously sentenced, he
or she must notify DOCS, which must then notify the sheriff or other
appropriate person to remove the inmate and have him or her taken back
before the original court to be resentenced.

 LEGISLATIVE HISTORY :

This is a new proposal.

 STATEMENT IN SUPPORT :

Before its amendment by Chapter 141 of the Laws of 2008, Correction
Law § 601-a required DOCS to notify the appropriate District Attorney
when a person in its custody had been erroneously sentenced as a
second, third or fourth offender. The recent amendment, which was part
of an overall effort by the State to address numerous cases in which
courts neglected to pronounce on the record the mandatory periods of
post-release supervision that were required for all determinate
sentences, required DOCS to make such a notification in all situations
of erroneous sentences, and not just when an inmate had been
erroneously sentenced as a predicate felon.

In order to ensure that erroneous sentences may be promptly corrected,
this bill would require DOCS to notify the District Attorney and the
inmate's defense counsel, as well as the sentencing court, of the
error. While it is important to notify the District Attorney of such
an error to allow him or her to make a timely motion to set aside the
illegal sentence pursuant to Criminal Procedure Law §440.40, such an
error should also be brought to the attention of the inmate's defense
attorney and the sentencing court.  That court may agree that the
sentence is invalid and take corrective action on its own.  Indeed, it
is ultimately that court's responsibility to examine the legality of
the imposed sentence and, if it agrees that the sentence is erroneous,
to schedule any resentencing proceeding. This bill will ensure that
sentencing courts and defense attorneys are given the prompt notice
that is necessary to allow the courts to correct their own errors in
an expeditious manner.

Furthermore, under the current wording of Correction Law § 601-a, DOCS
cannot unilaterally direct a local corrections official to re move a
confined inmate and deliver him or her to a sentencing court to
correct an erroneous sentence. Instead, consistent with Correction Law
Section . 72(2), an order to produce must first be issued by a court
that has the authority to require the inmate's presence, and such
order must be served on DOCS. There is no provision in Correction Law
§ 601-a addressing the procedural issue of how an erroneously
sentenced inmate is to be produced before the sentencing court. This
bill would allow the court, or the District Attorney at the court's
direction, to arrange for such an order, so that the inmate may be
produced in court to have his or her sentence corrected.

 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
This bill would take effect immediately.