S T A T E O F N E W Y O R K
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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.