senate Bill S5436

2011-2012 Legislative Session

Relates to sentencing and resentencing in domestic violence cases

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Archive: Last Bill Status - In Committee


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

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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

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S5436 - Bill Details

See Assembly Version of this Bill:
A7874A
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

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Relates to sentencing and resentencing in domestic violence cases.

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BILL NUMBER:S5436 REVISED 06/07/11

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 §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.

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 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
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 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
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
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:
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.

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                    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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