S T A T E O F N E W Y O R K
________________________________________________________________________
531
2023-2024 Regular Sessions
I N A S S E M B L Y
January 9, 2023
___________
Introduced by M. of A. WALKER, RIVERA, ANDERSON, AUBRY, BURDICK, BURGOS,
CARROLL, CLARK, COOK, CRUZ, CUNNINGHAM, DARLING, DICKENS, EPSTEIN,
FORREST, GALLAGHER, GIBBS, GONZALEZ-ROJAS, HEVESI, JACKSON, KELLES,
LUCAS, MAMDANI, MEEKS, MITAYNES, PRETLOW, REYES, L. ROSENTHAL, SEPTI-
MO, SIMON, TAPIA, TAYLOR, WEPRIN -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to authorizing
certain persons confined in institutions operated by the department of
corrections and community supervision to apply for a sentence
reduction
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The criminal procedure law is amended by adding a new
section 440.45 to read as follows:
§ 440.45 APPLICATION FOR SENTENCE REDUCTION.
1. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, INCLUDING ANY MINI-
MUM SENTENCE REQUIREMENT, ANY PERSON CONFINED IN AN INSTITUTION OPERATED
BY THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION WHO HAS
SERVED TEN YEARS OF THEIR SENTENCE, OR ONE-HALF OF THE MINIMUM TERM OF
AN INDETERMINATE SENTENCE WHERE THE MINIMUM TERM EQUALS OR EXCEEDS TEN
YEARS, OR ONE-HALF OF A DETERMINATE SENTENCE WHERE THE SENTENCE EQUALS
OR EXCEEDS TEN YEARS, WHICHEVER IS LESS, MAY APPLY FOR A REDUCTION OF
THEIR SENTENCE PURSUANT TO THE PROVISIONS OF THIS STATUTE. FOR THE
PURPOSES OF THIS SUBDIVISION, THE TERM "SENTENCE" SHALL INCLUDE ANY
AGGREGATE SENTENCE WHERE CONSECUTIVE SENTENCES ARE IMPOSED.
(B) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, AN OTHERWISE
INELIGIBLE PERSON SHALL BE DEEMED ELIGIBLE TO APPLY FOR A REDUCTION IN
SENTENCE UPON CONSENT OF THE PROSECUTOR IN THE UNDERLYING CRIMINAL
ACTION IN WHICH THE SENTENCE WAS IMPOSED.
(C) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, THE PROSECUTOR
IN THE UNDERLYING CRIMINAL ACTION IN WHICH A SENTENCE WAS IMPOSED MAY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00647-02-3
A. 531 2
INITIATE AN APPLICATION FOR RESENTENCING ON BEHALF OF THE INCARCERATED
INDIVIDUAL AND UPON SUCH APPLICATION AN ATTORNEY SHALL BE ASSIGNED TO
REPRESENT THE INCARCERATED INDIVIDUAL IN PROCEEDINGS PURSUANT TO THIS
SECTION.
(D) NO WAIVER OF THE RIGHT TO MAKE AN APPLICATION FOR A SENTENCE
REDUCTION UNDER THIS SECTION SHALL BE PERMITTED OR HONORED BY THE
SENTENCING COURT. ANY SUCH WAIVER SHALL BE DEEMED VOID AND UNENFORCEA-
BLE.
(E) NO LESS THAN THIRTY DAYS BEFORE THE DATE ON WHICH THE PERSON
BECOMES ELIGIBLE PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION TO APPLY
FOR A SENTENCE REDUCTION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION SHALL PROVIDE WRITTEN NOTICE OF THIS SECTION AND ITS
PROVISIONS TO:
(I) THE DEFENDANT;
(II) THE ATTORNEY OF RECORD;
(III) THE ADMINISTRATOR OF THE COUNTY PANEL ESTABLISHED FOR PURPOSES
OF THE ADMINISTRATION OF ARTICLE EIGHTEEN-B OF THE COUNTY LAW AND ALL
INSTITUTIONAL OFFICES THAT PROVIDE CRIMINAL DEFENSE SERVICES WITHIN THE
COUNTY IN WHICH THE SENTENCE WAS IMPOSED;
(IV) PRISONERS' LEGAL SERVICES OF NEW YORK;
(V) THE SENTENCING COURT; AND
(VI) THE PROSECUTOR IN THE UNDERLYING CRIMINAL ACTION IN WHICH THE
SENTENCE WAS IMPOSED.
(F) A PERSON WHO IS ELIGIBLE FOR A SENTENCE REDUCTION PURSUANT TO THIS
SUBDIVISION 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 SEVEN-
TEEN AND SUBDIVISION FOUR OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE
COUNTY LAW AND THE RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW
FOR THE APPLICATION AND ANY PROCEEDINGS UNDER THIS SECTION, INCLUDING
ANY APPEAL AND SUCCESSIVE APPLICATION. THE COURT SHALL NOTIFY THE APPLI-
CANT ABOUT THE APPOINTMENT OF COUNSEL.
2. (A) AN APPLICATION FOR A SENTENCE REDUCTION UNDER THIS SECTION
SHALL BE FILED IN THE COUNTY IN WHICH THE SENTENCE WAS IMPOSED TO REDUCE
THE SENTENCE OF THE APPLICANT PURSUANT TO THIS SECTION AND MAY INCLUDE
AFFIDAVITS, LETTERS, DECLARATIONS, RECORDS FROM THE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION, VIDEO SUBMISSIONS, OR ANY OTHER
WRITTEN OR ELECTRONIC MATERIAL.
(B) UPON THE COURT'S RECEIPT OF AN APPLICATION FOR A SENTENCE
REDUCTION, THE COURT SHALL PROMPTLY NOTIFY THE APPROPRIATE PROSECUTOR
AND PROVIDE SUCH PROSECUTOR WITH A COPY OF THE APPLICATION.
(C) AN APPLICATION FILED PURSUANT TO THIS SECTION SHALL BE RANDOMLY
ASSIGNED BY THE ADMINISTRATIVE JUDGE DESIGNATED BY THE OFFICE OF COURT
ADMINISTRATION WITH JURISDICTION OVER THE COUNTY WHERE THE APPLICATION
IS FILED TO ANY SUPERIOR COURT JUDGE WITH CRIMINAL JURISDICTION OTHER
THAN THE JUDGE WHO FIRST SENTENCED THE APPLICANT UNLESS THE JUDGE WHO
FIRST SENTENCED THE APPLICANT IS THE ONLY JUDGE IN THAT COUNTY.
(D) AN APPLICATION FILED UNDER THIS SECTION MAY BE AMENDED OR SUPPLE-
MENTED AS NECESSARY.
(E) AFTER THE FILING OF AN APPLICATION TO REDUCE A SENTENCE UNDER THIS
SECTION, THE COURT MAY DIRECT THE PARTIES TO EXPAND THE RECORD BY
SUBMITTING ADDITIONAL WRITTEN MATERIALS RELATING TO THE APPLICATION.
(F) (I) THE COURT SHALL, UPON REQUEST OF THE APPLICANT OR THE PROSE-
CUTING OFFICE, CONDUCT A HEARING ON THE APPLICATION, AT WHICH THE APPLI-
CANT AND COUNSEL FOR THE APPLICANT SHALL BE GIVEN THE OPPORTUNITY TO BE
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HEARD. SUCH HEARING SHALL BE RECORDED OR TRANSCRIBED. THE APPLICANT HAS
THE RIGHT TO BE PRESENT AT ANY SUCH HEARING UNLESS THE APPLICANT WAIVES
THE RIGHT TO BE PRESENT IN WRITING.
(II) IN A HEARING PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH, THE
COURT SHALL ALLOW PARTIES TO PRESENT ANY EVIDENCE PERTINENT TO THE ISSUE
OF A SENTENCE REDUCTION AND THE FACTORS OUTLINED IN PARAGRAPH (B) OF
SUBDIVISION FOUR OF THIS SECTION. SUCH EVIDENCE MAY INCLUDE DOCUMENTS,
LIVE TESTIMONY, TANGIBLE OBJECTS, OR ANY OTHER CLASS OF EVIDENCE OR
INFORMATION PERTINENT TO SENTENCING. AT SUCH HEARING, THE APPLICANT
SHALL HAVE THE RIGHT TO MAKE A STATEMENT PERSONALLY, ON THEIR OWN
BEHALF, IN THE SAME MANNER AS PROVIDED IN SUBDIVISION ONE OF SECTION
380.50 OF THIS PART.
3. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A COURT SHALL
REDUCE A TERM OF IMPRISONMENT IMPOSED UPON A DEFENDANT IF:
(I) THE APPLICANT IS ELIGIBLE PURSUANT TO SUBDIVISION ONE OF THIS
SECTION; AND
(II) THE COURT FINDS, AFTER CONSIDERING THE FACTORS SET FORTH IN
SUBDIVISION FOUR OF THIS SECTION, THAT THE INTERESTS OF JUSTICE WARRANT
A SENTENCE MODIFICATION.
(B) (I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN REDUCING AN
APPLICANT'S SENTENCE UNDER THIS SECTION, THE COURT MAY ISSUE A SENTENCE
LESS THAN THE MINIMUM TERM OTHERWISE REQUIRED BY ARTICLE SEVENTY OF THE
PENAL LAW. OTHERWISE, THE APPLICABLE PROVISIONS IN ARTICLE SEVENTY OF
THE PENAL LAW IN EFFECT AT THE TIME OF THE SENTENCE REDUCTION SHALL
APPLY.
(II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN REDUCING AN
APPLICANT'S SENTENCE UNDER THIS SECTION, THE COURT MAY ISSUE A SENTENCE
TO BE SERVED CONCURRENTLY TO ANY OTHER SENTENCE OF IMPRISONMENT, BEING
SERVED BY THE APPLICANT.
(III) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN REDUCING AN
APPLICANT'S SENTENCE UNDER THIS SECTION, THE COURT MAY SENTENCE THE
APPLICANT TO A LESS THAN MINIMUM TERM OF SUPERVISED RELEASE OTHERWISE
REQUIRED BY LAW.
(C) IN ORDERING A SENTENCE REDUCTION, THE COURT SHALL, UNLESS COUNTER-
VAILING CONSIDERATIONS REQUIRE, REDUCE THE APPLICANT'S SENTENCE SO THAT
THE APPLICANT WILL BE ELIGIBLE FOR IMMEDIATE RELEASE FROM PRISON AFTER
THE NECESSARY CALCULATIONS.
(D) THE COURT MAY NOT INCREASE ANY APPLICANT'S SENTENCE, AND IF THE
ORIGINAL JUDGMENT WAS THE RESULT OF A PLEA AGREEMENT, RESENTENCING
PURSUANT TO THIS SECTION SHALL NOT CONSTITUTE GROUNDS FOR A PROSECUTOR
OR THE COURT TO WITHDRAW THEIR AGREEMENT TO THE ORIGINAL PLEA AGREEMENT.
4. (A) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE APPLICANT'S
SENTENCE SHALL BE REDUCED IN THE CASE OF:
(I) AN APPLICANT WHO IS FIFTY-FIVE YEARS OF AGE OR OLDER ON THE DATE
ON WHICH THE APPLICANT FILES AN APPLICATION FOR A SENTENCE REDUCTION
PURSUANT TO SUBDIVISION ONE OF THIS SECTION; OR
(II) AN APPLICANT WHO WAS TWENTY-FIVE YEARS OLD OR YOUNGER ON THE DATE
ON WHICH THE APPLICANT COMMITTED THE OFFENSE OR OFFENSES FOR WHICH THE
APPLICANT IS IMPRISONED.
(B) THE COURT, IN DETERMINING WHETHER TO REDUCE A TERM OF IMPRISONMENT
PURSUANT TO SUBDIVISION THREE OF THIS SECTION, SHALL CONSIDER THE
FOLLOWING FACTORS:
(I) THE HISTORY AND CHARACTERISTICS OF THE APPLICANT AT THE TIME OF
THE APPLICATION FOR A REDUCTION IN SENTENCE, INCLUDING BUT NOT LIMITED
TO:
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(1) ANY HISTORY OF ABUSE, TRAUMA, OR INVOLVEMENT IN THE CHILD WELFARE
SYSTEM;
(2) THE POTENTIAL BENEFITS TO CHILDREN AND FAMILY MEMBERS OF REUNIFI-
CATION WITH THE APPLICANT;
(3) REHABILITATION DEMONSTRATED BY THE APPLICANT;
(4) THE APPLICANT'S RECORDS WHILE INCARCERATED; AND
(5) THE APPLICANT'S EFFORTS TO PARTICIPATE IN EDUCATIONAL, THERAPEU-
TIC, AND VOCATIONAL OPPORTUNITIES WHILE INCARCERATED TO THE EXTENT SUCH
PROGRAMS WERE AVAILABLE; PROVIDED HOWEVER THAT THE FACT THAT THE APPLI-
CANT MAY HAVE BEEN UNABLE TO PARTICIPATE IN TREATMENT OR OTHER PROGRAM-
MING WHILE INCARCERATED DESPITE SUCH APPLICANT'S WILLINGNESS TO DO SO
SHALL NOT BE CONSIDERED A NEGATIVE FACTOR IN DETERMINING AN APPLICATION
PURSUANT TO THIS SECTION;
(II) THE CIRCUMSTANCES OF THE OFFENSE, INCLUDING THE APPLICANT'S ROLE
IN ITS COMMISSION, WHETHER THE APPLICANT WAS UNDER THE INFLUENCE OF
ANOTHER, AND WHETHER THERE IS ANY OTHER FACTOR THAT WOULD TEND TO DIMIN-
ISH THE APPLICANT'S CULPABILITY;
(III) ANY REPORT FROM A PHYSICAL, MENTAL, OR PSYCHIATRIC EXAMINATION
OF THE APPLICANT CONDUCTED BY A LICENSED HEALTHCARE PROFESSIONAL;
(IV) ANY STATEMENT OFFERED IN RESPONSE TO THIS APPLICATION BY ANY
VICTIM OF AN OFFENSE FOR WHICH THE APPLICANT IS IMPRISONED OR BY A FAMI-
LY MEMBER OF THE VICTIM IF THE VICTIM IS DECEASED;
(V) ANY EVIDENCE CONCERNING WHETHER THE APPLICANT'S SENTENCE WAS
ENHANCED BECAUSE THE APPLICANT EXERCISED THEIR CONSTITUTIONAL RIGHT TO A
TRIAL, INCLUDING BUT NOT LIMITED TO, EVIDENCE CONCERNING THE PLEA OFFERS
MADE PRIOR TO THE TRIAL;
(VI) ANY PRESENTATION OF ARGUMENT AND EVIDENCE BY COUNSEL FOR THE
APPLICANT OR BY THE APPLICANT;
(VII) ANY PRESENTATION OF ARGUMENT AND EVIDENCE BY THE PROSECUTOR; AND
(VIII) THE FINANCIAL COST OF CONTINUED INCARCERATION TO THE STATE
AND/OR LOCALITIES.
5. A WRITTEN ORDER DETERMINING AN APPLICATION FOR REDUCTION OF
SENTENCE SHALL ISSUE FORTHWITH AND IN NO EVENT LATER THAN THIRTY DAYS
AFTER ANY HEARING OR AFTER ALL SUBMISSIONS HAVE BEEN FILED IF NO HEARING
IS HELD. SUCH AN ORDER SHALL INCLUDE DETAILED WRITTEN FINDINGS OF FACT
AND THE REASONS FOR GRANTING OR DENYING THE APPLICATION.
6. IN CALCULATING ANY NEW SENTENCE TO BE SERVED BY THE APPLICANT, SUCH
APPLICANT SHALL BE CREDITED FOR ANY JAIL TIME CREDITED TOWARDS THE
SUBJECT CONVICTIONS AS WELL AS ANY PERIOD OF INCARCERATION CREDITED
TOWARD THE SENTENCE OR SENTENCES ORIGINALLY IMPOSED.
7. AN APPEAL MAY BE TAKEN AS OF RIGHT IN ACCORDANCE WITH APPLICABLE
PROVISIONS OF THIS CHAPTER:
(A) FROM AN ORDER DENYING THE APPLICATION FOR A SENTENCE REDUCTION; OR
(B) FROM A NEW SENTENCE IMPOSED UNDER THIS SECTION AND MAY BE BASED ON
THE GROUNDS THAT:
(I) THE TERM OF THE NEW SENTENCE IS HARSH OR EXCESSIVE; OR
(II) THE TERM OF THE NEW SENTENCE IS UNAUTHORIZED AS A MATTER OF LAW.
8. THE APPLICANT SHALL BE PERMITTED TO FILE SUCCESSIVE APPLICATIONS
AND SUCH APPLICATIONS SHALL NOT BE CONSIDERED MORE THAN ONCE EVERY THREE
YEARS.
9. (A) THIS SECTION SHALL NOT BE CONSTRUED TO ABRIDGE OR MODIFY ANY
EXISTING REMEDY AN INCARCERATED INDIVIDUAL MAY HAVE UNDER HABEAS CORPUS,
STATUTORY OR JUDICIAL POSTCONVICTION RELIEF, OR ANY OTHER LEGAL FRAME-
WORK.
(B) AN APPLICATION UNDER THIS SECTION SHALL NOT IMPACT IN ANY WAY OR
BE IMPACTED IN ANY WAY BY ANY PENDING HABEAS OR OTHER POSTCONVICTION
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PROCEEDING, NOR SHALL THE DENIAL OF AN APPLICATION UNDER THIS SECTION
PRECLUDE SUCH REMEDIES FROM BEING GRANTED.
10. IN THREE YEARS, THE COMPTROLLER SHALL CONDUCT AN ANALYSIS OF
SAVINGS FOUND FROM DECARCERATION AND SHALL MAKE RECOMMENDATIONS TO THE
LEGISLATURE REGARDING DIVERTING SUCH SAVINGS TO FUND PRISON-BASED AND
COMMUNITY-BASED PROGRAMS DESIGNED TO COUNTER RECIDIVISM THROUGH EDUCA-
TION, THERAPEUTIC INTERVENTION, MAINTENANCE OF FAMILIAL AND SOCIAL
NETWORKS, RESTORATIVE JUSTICE PRACTICES FOR SURVIVORS OF CRIMES, AND
SUCCESSFUL POST-CUSTODIAL RE-ENTRY TO SOCIETY.
11. (A) THE CLERK OF THE COURT UPON DETERMINATION OF AN APPLICATION
FILED PURSUANT TO THIS SECTION SHALL REPORT THE FOLLOWING INFORMATION TO
THE OFFICE OF COURT ADMINISTRATION:
(I) THE NAME, DEPARTMENT IDENTIFICATION NUMBER, AND RACE OF EACH
INCARCERATED INDIVIDUAL WHO HAS BEEN DENIED OR GRANTED RESENTENCING;
(II) HOW MANY YEARS OF IMPRISONMENT EACH INCARCERATED INDIVIDUAL
SERVED AT THE TIME OF THE APPLICATION;
(III) ANY NEW SENTENCE IF APPLICABLE;
(IV) THE COUNTY AND THE NAME OF THE JUDGE DECIDING THE APPLICATION;
(V) WHETHER THE PROSECUTOR CONSENTED, OPPOSED OR TOOK NO POSITION ON
THE APPLICATION; AND
(VI) IF ANY PRIOR APPLICATIONS HAD BEEN SUBMITTED AND THE DATE SUCH
APPLICATIONS WERE DECIDED.
(B) THE OFFICE OF COURT ADMINISTRATION SHALL PROVIDE AN ANNUAL COLLEC-
TIVE REPORT CONTAINING THE INFORMATION RECEIVED FROM THE CLERKS OF THE
COURT PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION TO THE GOVERNOR AND
LEGISLATURE.
§ 2. Any applicant who is immediately eligible to apply for a sentence
reduction pursuant to section 440.45 of the criminal procedure law shall
be provided the notice required pursuant to paragraph (d) of subdivision
1 of such section within sixty days of the effective date of this act.
§ 3. This act shall take effect immediately and shall apply to
offenses committed prior to, on or after the effective date of this act.