S T A T E O F N E W Y O R K
________________________________________________________________________
1077
2019-2020 Regular Sessions
I N S E N A T E
January 10, 2019
___________
Introduced by Sen. PERSAUD -- 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:
§ 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
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00863-01-9
S. 1077 2
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
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
S. 1077 3
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
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
S. 1077 4
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.
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
S. 1077 5
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.
(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.
S. 1077 6
(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
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:
S. 1077 7
(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.
