S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5964
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 20, 2019
                                ___________
 
 Introduced by M. of A. CRESPO -- read once and referred to the Committee
   on Codes
 
 AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
   relation to reducing certain sentences of imprisonment  for  misdemea-
   nors to three hundred sixty-four days
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 1 and 3 of section 70.15  of  the  penal  law,
 subdivision 1 as amended by chapter 291 of the laws of 1993, are amended
 to read as follows:
   1.  Class  A  misdemeanor.  A  sentence  of imprisonment for a class A
 misdemeanor shall be a  definite  sentence.  When  such  a  sentence  is
 imposed  the term shall be fixed by the court, and shall not exceed [one
 year; provided, however, that a sentence of imprisonment imposed upon  a
 conviction  of  criminal  possession of a weapon in the fourth degree as
 defined in subdivision one of section 265.01 must be for a period of  no
 less than one year when the conviction was the result of a plea of guil-
 ty  entered in satisfaction of an indictment or any count thereof charg-
 ing the defendant with the class D violent felony  offense  of  criminal
 possession  of  a  weapon  in the third degree as defined in subdivision
 four of section 265.02, except that  the  court  may  impose  any  other
 sentence  authorized  by  law  upon a person who has not been previously
 convicted in the five years immediately preceding the commission of  the
 offense  for  a felony or a class A misdemeanor defined in this chapter,
 if the court having regard to the nature and circumstances of the  crime
 and  to  the history and character of the defendant, finds on the record
 that such sentence would  be  unduly  harsh  and  that  the  alternative
 sentence  would  be consistent with public safety and does not deprecate
 the seriousness of the crime] THREE HUNDRED SIXTY-FOUR DAYS.
   3. Unclassified misdemeanor. A sentence of imprisonment for an unclas-
 sified misdemeanor shall be a definite sentence. When such a sentence is
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05291-07-9

 A. 5964                             2
 
 imposed the term shall be fixed by the court, and shall be in accordance
 with the sentence specified in the law or  ordinance  that  defines  the
 crime  BUT,  IN  ANY EVENT, IT SHALL NOT EXCEED THREE HUNDRED SIXTY-FOUR
 DAYS.
   §  2. Section 70.15 of the penal law is amended by adding a new subdi-
 vision 1-a to read as follows:
   1-A. (A) NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, WHENEVER THE
 PHRASE "ONE YEAR" OR "THREE HUNDRED SIXTY-FIVE DAYS" OR  "365  DAYS"  OR
 ANY SIMILAR PHRASE APPEARS IN ANY PROVISION OF THIS CHAPTER OR ANY OTHER
 LAW  IN  REFERENCE TO THE DEFINITE SENTENCE OR MAXIMUM DEFINITE SENTENCE
 OF IMPRISONMENT THAT IS IMPOSED, OR HAS BEEN IMPOSED, OR MAY BE  IMPOSED
 AFTER  ENACTMENT  OF  THIS  SUBDIVISION, FOR A MISDEMEANOR CONVICTION IN
 THIS STATE, SUCH PHRASE SHALL MEAN, BE INTERPRETED  AND  BE  APPLIED  AS
 THREE HUNDRED SIXTY-FOUR DAYS.
   (B) THE AMENDATORY PROVISIONS OF THIS SUBDIVISION ARE AMELIORATIVE AND
 SHALL  APPLY  TO  ALL  PERSONS WHO ARE SENTENCED BEFORE, ON OR AFTER THE
 EFFECTIVE DATE OF THIS SUBDIVISION, FOR A CRIME COMMITTED BEFORE, ON  OR
 AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.
   (C)  ANY  SENTENCE  FOR  A MISDEMEANOR CONVICTION IMPOSED PRIOR TO THE
 EFFECTIVE DATE OF THIS SUBDIVISION THAT IS A DEFINITE SENTENCE OF IMPRI-
 SONMENT OF ONE YEAR, OR THREE HUNDRED SIXTY-FIVE DAYS, SHALL, BY  OPERA-
 TION  OF  LAW,  BE  CHANGED TO, MEAN AND BE INTERPRETED AND APPLIED AS A
 SENTENCE OF THREE HUNDRED SIXTY-FOUR DAYS.  IN  ADDITION  TO  ANY  OTHER
 RIGHT OF A PERSON TO OBTAIN A RECORD OF A PROCEEDING AGAINST HIM OR HER,
 A  PERSON  SO  SENTENCED PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVISION
 SHALL BE ENTITLED TO OBTAIN, FROM THE CRIMINAL COURT OR THE CLERK THERE-
 OF, A CERTIFICATE OF CONVICTION, AS  DESCRIBED  IN  SUBDIVISION  ONE  OF
 SECTION 60.60 OF THE CRIMINAL PROCEDURE LAW, SETTING FORTH SUCH SENTENCE
 AS THE SENTENCE SPECIFIED IN THIS PARAGRAPH.
   (D)  ANY  SENTENCE  FOR  A MISDEMEANOR CONVICTION IMPOSED PRIOR TO THE
 EFFECTIVE DATE OF  THIS  SUBDIVISION  THAT  IS  OTHER  THAN  A  DEFINITE
 SENTENCE  OF  IMPRISONMENT  OF ONE YEAR MAY BE SET ASIDE, UPON MOTION OF
 THE DEFENDANT UNDER SECTION 440.20 OF THE CRIMINAL PROCEDURE  LAW  BASED
 ON  A  SHOWING THAT THE JUDGMENT AND SENTENCE UNDER THE LAW IN EFFECT AT
 THE TIME OF CONVICTION IMPOSED PRIOR  TO  THE  EFFECTIVE  DATE  OF  THIS
 SUBDIVISION  IS  LIKELY  TO RESULT IN SEVERE COLLATERAL CONSEQUENCES, IN
 ORDER TO PERMIT THE COURT TO RESENTENCE THE DEFENDANT IN ACCORDANCE WITH
 THE AMENDATORY PROVISIONS OF THIS SUBDIVISION.
   (E) RESENTENCE BY OPERATION OF LAW IS WITHOUT PREJUDICE TO AN INDIVID-
 UAL SEEKING FURTHER RELIEF PURSUANT TO PARAGRAPH (I) OF SUBDIVISION  ONE
 OF SECTION 440.10 OF THE CRIMINAL PROCEDURE LAW. NOTHING IN THIS SECTION
 IS  INTENDED  TO  DIMINISH  OR ABROGATE ANY RIGHTS OR REMEDIES OTHERWISE
 AVAILABLE TO THE INDIVIDUAL.
   § 3. Paragraph (i) of subdivision 1 of section 440.10 of the  criminal
 procedure  law, as amended by chapter 368 of the laws of 2015, the open-
 ing paragraph as amended by chapter 189 of the laws of 2018, is  amended
 and a new paragraph (j) is added to read as follows:
   (i)  The judgment is a conviction where the arresting charge was under
 section 240.37 (loitering for the purpose of engaging in a  prostitution
 offense, provided that the defendant was not alleged to be loitering for
 the  purpose of patronizing a person for prostitution or promoting pros-
 titution) or 230.00 (prostitution) or 230.03 (prostitution in  a  school
 zone) of the penal law, and the defendant's participation in the offense
 was  a  result  of having been a victim of sex trafficking under section
 230.34 of the penal law,  sex  trafficking  of  a  child  under  section
 230.34-a of the penal law, labor trafficking under section 135.35 of the

 A. 5964                             3
 
 penal  law,  aggravated  labor  trafficking  under section 135.37 of the
 penal law, compelling prostitution under section  230.33  of  the  penal
 law,  or trafficking in persons under the Trafficking Victims Protection
 Act (United States Code, title 22, chapter 78); provided that
   (i)  a  motion  under this paragraph shall be made with due diligence,
 after the defendant has ceased to be a victim  of  such  trafficking  or
 compelling prostitution crime or has sought services for victims of such
 trafficking  or  compelling  prostitution  crime,  subject to reasonable
 concerns for the safety of the defendant, family members of the  defend-
 ant,  or  other  victims  of such trafficking or compelling prostitution
 crime that may be jeopardized by the bringing of  such  motion,  or  for
 other reasons consistent with the purpose of this paragraph; and
   (ii)  official  documentation of the defendant's status as a victim of
 trafficking, compelling prostitution or trafficking in  persons  at  the
 time  of  the  offense  from a federal, state or local government agency
 shall create a presumption that the  defendant's  participation  in  the
 offense was a result of having been a victim of sex trafficking, compel-
 ling  prostitution  or trafficking in persons, but shall not be required
 for granting a motion under this paragraph[.]; OR
   (J) THE JUDGMENT IS A CONVICTION FOR A CLASS A OR UNCLASSIFIED  MISDE-
 MEANOR  ENTERED PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH AND SATIS-
 FIES THE GROUND PRESCRIBED IN PARAGRAPH (H) OF THIS SUBDIVISION.   THERE
 SHALL  BE  A REBUTTABLE PRESUMPTION THAT A CONVICTION BY PLEA TO SUCH AN
 OFFENSE WAS NOT KNOWING AND VOLUNTARY, BASED ON SEVERE OR ONGOING COLLA-
 TERAL CONSEQUENCES, INCLUDING POTENTIAL  OR  ACTUAL  IMMIGRATION  CONSE-
 QUENCES,  AND  THERE SHALL BE A REBUTTABLE PRESUMPTION THAT A CONVICTION
 BY VERDICT CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT UNDER  SECTION  FIVE
 OF ARTICLE ONE OF THE STATE CONSTITUTION BASED ON SUCH CONSEQUENCES.
   § 4. Section 440.10 of the criminal procedure law is amended by adding
 a new subdivision 9 to read as follows:
   9. UPON GRANTING OF SUCH A MOTION, THE COURT MAY EITHER:
   (A)  WITH THE CONSENT OF THE PEOPLE, VACATE THE JUDGMENT OR MODIFY THE
 JUDGMENT BY REDUCING IT TO ONE OF CONVICTION FOR A LESSER OFFENSE; OR
   (B) VACATE THE JUDGMENT AND ORDER A NEW TRIAL  WHEREIN  THE  DEFENDANT
 ENTERS A PLEA TO THE SAME OFFENSE IN ORDER TO PERMIT THE COURT TO RESEN-
 TENCE  THE  DEFENDANT  IN  ACCORDANCE  WITH THE AMENDATORY PROVISIONS OF
 SUBDIVISION ONE-A OF SECTION 70.15 OF THE PENAL LAW.
   § 5. This act shall take effect immediately.