|Assembly Actions - Lowercase
Senate Actions - UPPERCASE
|Mar 12, 2012||committee discharged and committed to rules|
notice of committee consideration - requested
|Jan 04, 2012||referred to codes|
|May 20, 2011||referred to codes|
senate Bill S5436
Relates to sentencing and resentencing in domestic violence cases
Archive: Last Bill Status - In Committee
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
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S5436 - Bill Details
- See Assembly Version of this Bill:
- Current Committee:
- Law Section:
- Penal Law
- Laws Affected:
- Amd §§60.12 & 70.45, Pen L; add §440.47, amd §450.90, CP L
S5436 - Bill Texts
Relates to sentencing and resentencing in domestic violence cases.
view sponsor memo
BILL NUMBER:S5436 REVISED 06/07/11
TITLE OF BILL:
to amend the penal law and the criminal procedure law, in relation to
sentencing and resentencing in domestic violence cases
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 §60.12(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 §60.12 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.
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 tile 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
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%
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 d1at 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
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
d1.e 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:
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.
This legislation would take 120 days after enactment.
view full text
S T A T E O F N E W Y O R K ________________________________________________________________________ 5436 2011-2012 Regular Sessions I N S E N A T E May 20, 2011 ___________ Introduced by Sen. HASSELL-THOMPSON -- 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; (b) such abuse was a SIGNIFICANT CONTRIBUTING factor [in causing the defendant to commit such offense and] TO THE DEFENDANT'S CRIMINAL BEHAVIOR; EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11496-02-1 S. 5436 2 (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; (D) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF YEARS AND MUST NOT EXCEED TWO YEARS. S. 5436 3 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 PURSUANT TO SECTION 60.12 OF THE PENAL LAW MAY SUBMIT AN APPLICATION TO S. 5436 4 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 UNDERLYING BASIS OF THE SUBJECT CONVICTION. THE COURT'S CONSIDERATION OF S. 5436 5 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 OF THIS TITLE, an appeal may, except as provided in subdivision two, be taken to the court of appeals by either the defendant or the people from any adverse or partially adverse order of an intermediate appellate court entered upon an appeal taken to such intermediate appellate court pursuant to section 450.10, 450.15, or 450.20 OF THIS ARTICLE, or from an order granting or denying a motion to set aside an order of an intermediate 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 intermediate appellate court entered upon an appeal S. 5436 6 taken to such intermediate appellate court from an order entered pursu- ant to section 440.46 OR SECTION 440.47 of this [chapter] TITLE. 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.
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