S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3110
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2017
                                ___________
 
 Introduced  by  M.  of  A. AUBRY, PERRY, LIFTON, PEOPLES-STOKES, TITONE,
   PAULIN,  BRONSON,  ZEBROWSKI,  O'DONNELL,  PRETLOW,  JAFFEE,   CRESPO,
   MAGNARELLI, MOSLEY, ROZIC, BARRETT, GOTTFRIED, SIMOTAS, HEVESI, BLAKE,
   ARROYO,  ORTIZ,  QUART,  COOK,  HOOPER,  CAHILL, PICHARDO, RICHARDSON,
   WEPRIN, STIRPE, LUPARDO -- Multi-Sponsored by -- M. of A. FAHY, GALEF,
   GLICK, HIKIND, LENTOL, MAGEE, RODRIGUEZ,  ROSENTHAL,  SIMON,  SOLAGES,
   THIELE,  TITUS,  WALTER  -- read once and referred 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:
 § 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],  70.06  OR  SUBDIVISION  TWO OR THREE OF SECTION 70.71 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
 SIX-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,  70.06  OR  SUBDIVISION TWO OR THREE OF SECTION
 70.71 OF THIS TITLE to impose a [determinate] sentence  of  imprisonment
 [for  such offense], the court, upon a determination 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08333-01-7

 A. 3110                             2
 
 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;  (c)  [the victim or intended victim of
 such offense was a member of the same family or household as the defend-
 ant 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  imprison-
 ment  in  accordance  with  subdivisions two and three of this section.]
 HAVING REGARD FOR THE NATURE AND CIRCUMSTANCES  OF  THE  CRIME  AND  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
 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 DETERMINATE TERM
 OF IMPRISONMENT 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,  THE COURT MAY FIX A DETERMINATE 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  FOR
 A  CLASS  A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (B)
 OF SUBDIVISION TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY  FIX  A
 DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT  LEAST FIVE YEARS AND NOT TO
 EXCEED EIGHT YEARS.
   5. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
 A  CLASS  A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (B)
 OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A

 A. 3110                             3
 
 DETERMINATE TERM OF IMPRISONMENT OF AT  LEAST  FIVE  YEARS  AND  NOT  TO
 EXCEED TWELVE YEARS.
   6.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
 A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH  (B)
 OF  SUBDIVISION  TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
 DETERMINATE TERM OF IMPRISONMENT OF AT LEAST ONE YEAR AND NOT TO  EXCEED
 THREE YEARS.
   7.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
 A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH  (B)
 OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
 DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT LEAST THREE YEARS AND NOT TO
 EXCEED SIX YEARS.
   8. 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.
   9.  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.
   10.  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.
   11. 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.
   § 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 NINE 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
 NINE 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 upon
 conviction of a class D or class E felony offense OR SUBDIVISION TEN  OF
 SECTION 60.12 OF THIS TITLE;
   (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

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 imposed pursuant to subdivision three or four of section 70.70  of  this
 article upon conviction of a class B felony or class C felony offense[;]
 OR SUBDIVISION ELEVEN OF SECTION 60.12 OF THIS TITLE;
   (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  OR  EIGHT  OF  SECTION  60.12 OF THIS TITLE upon a
 conviction of a class D or class E violent felony offense OR SUBDIVISION
 FOUR, FIVE, SIX, OR SEVEN OF SECTION 60.12 OF THIS TITLE;
   (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 OR EIGHT OF  SECTION  60.12  OF  THIS  TITLE  upon  a
 conviction of a class B or class C violent felony offense.
   §  3.  The  criminal  procedure law is amended by adding a new section
 440.47 to read as follows:
 § 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 THE EFFEC-
 TIVE  DATE  OF  THIS  SECTION  AND  ELIGIBLE FOR AN ALTERNATIVE SENTENCE
 PURSUANT TO SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER SUCH  EFFEC-
 TIVE  DATE,  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 THIS SUBDIVISION,  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.

 A. 3110                             5
 
   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
 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.

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   (F)  IF  THE  COURT DETERMINES THAT THE APPLICANT SHOULD NOT BE RESEN-
 TENCED 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
 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.
   § 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

 A. 3110                             7
 
 which modifies a judgment or order appealed from is partially adverse to
 each party.
   §  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
 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.
   § 6. This act shall take effect immediately; provided,  however,  that
 sections  one  and two of this act shall apply to offenses committed on,
 after and prior to such effective  date  where  the  sentence  for  such
 offense has not yet been imposed; provided, further that sections three,
 four  and  five of this act shall take effect on the ninetieth day after
 it shall have become a law.