Senate Bill S8077

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8077
 
                             I N  S E N A T E
 
                             January 24, 2022
                                ___________
 
 Introduced  by  Sen.  CLEARE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation  to  authorizing
   courts to reduce or modify sentences for certain individuals when such
   sentence  is  deemed  to  be  greater  than  necessary  to achieve the
   purposes of sentencing

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 440.20 of the criminal procedure law is amended by
 adding a new subdivision 5 to read as follows:
   5. (A) UPON MOTION OF AN ELIGIBLE INDIVIDUAL, THE COURT IN WHICH JUDG-
 MENT WAS ENTERED MAY REDUCE OR MODIFY THE SENTENCE ON  THE  GROUND  THAT
 SUCH  SENTENCE  IS  GREATER  THAN  NECESSARY  TO ACHIEVE THE PURPOSES OF
 SENTENCING. SUBDIVISION TWO OF THIS SECTION SHALL NOT APPLY TO A  MOTION
 BROUGHT UNDER THIS SUBDIVISION.
   (B)  AN  INDIVIDUAL IS ELIGIBLE FOR RELIEF UNDER THIS SUBDIVISION WHEN
 HE OR SHE:
   (I) HAS BEEN CONVICTED, EITHER BY PLEA OR VERDICT, OF A FELONY OFFENSE
 AND IS IN THE CUSTODY OF THE DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY
 SUPERVISION;
   (II)  IS  MORE THAN TWO YEARS AWAY FROM CONDITIONAL RELEASE AT TIME OF
 FILING THE MOTION;
   (III) WAS SENTENCED TO AN INDETERMINATE TERM WITH AN AGGREGATE MINIMUM
 TERM OF TEN YEARS OR MORE OR AN AGGREGATE DETERMINATE TERM OF TEN  YEARS
 OR MORE;
   (IV)  HAS  SERVED (1) AT LEAST ONE-THIRD OF THE AGGREGATE MINIMUM TERM
 OF AN INDETERMINATE SENTENCE OR  AT  LEAST  ONE-THIRD  OF  AN  AGGREGATE
 DETERMINATE SENTENCE, OR (2) WHERE THE INDIVIDUAL IS SERVING TWO OR MORE
 SENTENCES  THAT  RUN  CONSECUTIVELY,  THE TIME REQUIRED TO BE SERVED FOR
 ELIGIBILITY UNDER SUBPARAGRAPH (I) OF THIS PARAGRAPH OR EIGHT  AND  ONE-
 THIRD YEARS, WHICHEVER IS LESS;
   (V)  IS  NOT  CURRENTLY  SERVING A SENTENCE FOR: AN OFFENSE DEFINED IN
 ARTICLE ONE HUNDRED TWENTY-FIVE,  ONE  HUNDRED  THIRTY  OR  TWO  HUNDRED
 SIXTY-THREE  OF THE PENAL LAW; OR MONEY LAUNDERING IN SUPPORT OF TERROR-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01693-01-1
 S. 8077                             2
 
 ISM IN THE FIRST DEGREE AS DEFINED IN SECTION 470.24 OF THE  PENAL  LAW;
 OR  MONEY  LAUNDERING  IN  SUPPORT  OF TERRORISM IN THE SECOND DEGREE AS
 DEFINED IN SECTION 470.23 OF THE PENAL LAW; OR A FELONY CRIME OF TERROR-
 ISM  AS  DEFINED  IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, OTHER
 THAN THE CRIME DEFINED IN SECTION 490.20 OF SUCH LAW;
   (VI) IS NOT CURRENTLY SERVING A SENTENCE FOR AN OFFENSE THAT  INCLUDED
 AS  AN  ELEMENT  THE  INFLICTION OF SERIOUS PHYSICAL INJURY; EXCEPT THAT
 THIS SUBPARAGRAPH SHALL NOT APPLY WHEN THE INDIVIDUAL'S CRIMINAL LIABIL-
 ITY FOR THE OFFENSE WAS BASED SOLELY ON THE PHYSICAL ACTIONS OR  CONDUCT
 OF ANOTHER PURSUANT TO SECTION 20.00 OF THE PENAL LAW; OR
   (VII)  IF  DEFENDANT  HAS APPEALED FROM A JUDGMENT OR SENTENCE THAT IS
 THE SUBJECT OF RELIEF PURSUANT TO THIS SECTION,  SUCH  APPEAL  HAS  BEEN
 FINALLY  DETERMINED.  NOTHING IN THIS SUBPARAGRAPH SHALL BE CONSTRUED TO
 REQUIRE THAT THE DEFENDANT HAS TAKEN A DIRECT  APPEAL  IN  ORDER  TO  BE
 ELIGIBLE FOR RELIEF PURSUANT TO THIS SECTION.
   (C)  NOTWITHSTANDING  THE PROVISIONS OF PARAGRAPH (B) OF THIS SUBDIVI-
 SION, AN OTHERWISE INELIGIBLE INDIVIDUAL SHALL BE DEEMED  ELIGIBLE  UPON
 CONSENT OF THE DISTRICT ATTORNEY.
   (D)  AN INDIVIDUAL WHO IS SERVING THE MINIMUM SENTENCE PERMITTED UNDER
 THE PENAL LAW SHALL NOT BE ELIGIBLE UNDER THIS SUBDIVISION.
   (E) A MOTION BROUGHT PURSUANT TO THIS SUBDIVISION  SHALL  BE  REFERRED
 FOR  DETERMINATION  TO  THE  JUDGE  OR  JUSTICE WHO IMPOSED THE ORIGINAL
 SENTENCE UPON SUCH INDIVIDUAL. IF, AT THE TIME OF THE  APPLICATION,  THE
 ORIGINAL  SENTENCING JUDGE OR JUSTICE IS NO LONGER A JUDGE OR JUSTICE OF
 A COURT  OF  COMPETENT  JURISDICTION,  THEN  THE  APPLICATION  SHALL  BE
 ASSIGNED  TO ANOTHER JUDGE OR JUSTICE OF THE COURT BY THE ADMINISTRATIVE
 JUDGE OF THE APPLICABLE COURT.
   (F) IN DECIDING THE MOTION, THE COURT SHALL CONSIDER THE PRINCIPLES OF
 REHABILITATION, PUNISHMENT AND  DETERRENCE,  THE  REHABILITATION  DEMON-
 STRATED BY THE DEFENDANT, AND THE PROMOTION OF THE INDIVIDUAL'S SUCCESS-
 FUL  REENTRY  AND  REINTEGRATION INTO SOCIETY, AS WELL AS PUBLIC SAFETY.
 THE COURT MAY CONSIDER ANY FACTS OR CIRCUMSTANCES RELEVANT TO THE  IMPO-
 SITION  OF  A  NEW SENTENCE THAT ARE SUBMITTED BY SUCH INDIVIDUAL OR THE
 DISTRICT ATTORNEY, INCLUDING, BUT NOT LIMITED TO:
   (I) AGE, PERSONAL  CIRCUMSTANCES,  AND  MEDICAL  CONDITION,  INCLUDING
 CONDITIONS THAT EXISTED AT THE TIME OF THE ORIGINAL SENTENCING;
   (II) THE DEFENDANT'S INSTITUTIONAL RECORD OF CONFINEMENT; AND
   (III)  WHETHER THE INDIVIDUAL HAS AVAILED HIMSELF OR HERSELF OF EDUCA-
 TIONAL, THERAPEUTIC, AND VOCATIONAL OPPORTUNITIES WHILE IMPRISONED.
   (G) THE COURT SHALL NOT ORDER A  NEW  PRE-SENTENCE  INVESTIGATION  AND
 REPORT.  THE  COURT SHALL OFFER THE DEFENDANT AN OPPORTUNITY FOR A HEAR-
 ING. IF THE COURT FINDS THAT THE SENTENCE IS GREATER THAN  NECESSARY  TO
 ACHIEVE THE PURPOSES OF SENTENCING, THE COURT SHALL GRANT THE MOTION AND
 ENTER  AN  ORDER MODIFYING THE SENTENCE TO ANY LESSER AUTHORIZED TERM OF
 IMPRISONMENT. THE ORDER MAY  ALSO  DIRECT  THAT  THE  NEW  SENTENCE  RUN
 CONCURRENTLY  WITH  ANY  OTHER  TERM OF IMPRISONMENT BEING SERVED BY THE
 INDIVIDUAL. THE COURT SHALL PLACE ITS REASONS ON THE RECORD FOR  MODIFI-
 CATION OF THE SENTENCE, OR DENIAL OF MODIFICATION.
   (H) IN THE EVENT THAT AN INDIVIDUAL IS DENIED RELIEF UNDER THIS SUBDI-
 VISION, OR IN THE EVENT THAT THE INDIVIDUAL IS DENIED THE FULL REDUCTION
 SOUGHT,  HE  OR SHE MAY BRING A NEW MOTION AT ANY TIME AFTER THREE YEARS
 FROM THE DATE OF DENIAL OF THE PREVIOUS MOTION.
   (I) AN APPEAL TO AN INTERMEDIATE APPELLATE COURT MAY BE  TAKEN  AS  OF
 RIGHT FROM AN ORDER DENYING A MOTION MADE PURSUANT TO THIS SUBDIVISION.
   (J)  NO  DEFENDANT SHALL BE REQUIRED OR PERMITTED TO WAIVE ELIGIBILITY
 FOR RELIEF PURSUANT TO THIS  SECTION  AS  PART  OF  A  PLEA  OF  GUILTY,
 S. 8077                             3
 
 SENTENCE  OR ANY AGREEMENT RELATED TO A CONVICTION FOR A FELONY OFFENSE,
 AND ANY SUCH WAIVER SHALL BE DEEMED VOID AND WHOLLY UNENFORCEABLE.
   (K) AN ORDER MODIFYING THE SENTENCE PURSUANT TO THIS SECTION SHALL NOT
 AFFECT THE VALIDITY OR STATUS OF THE UNDERLYING CONVICTION.
   (L) 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 MOTIONS PURSUANT TO THIS  SECTION,  AS
 WELL AS TO ANY APPEALS TAKEN PURSUANT TO THIS SUBDIVISION.
   §  2.  This  act  shall  take  effect  immediately  and shall apply to
 offenses committed before, on or after the  date  this  act  shall  have
 become a law.