§ 440.46-a Motion for resentence; persons convicted of certain marihuana

offenses.

1. When a person is serving a sentence for a conviction in this state,
whether by trial verdict or guilty plea, under former article two
hundred twenty-one of the penal law, and such persons' conduct as
alleged in the accusatory instrument and/or shown by the guilty plea or
trial verdict would not have been a crime under article two hundred
twenty-two of the penal law, had such article two hundred twenty-two
rather than former article two hundred twenty-one of the penal law been
in effect at the time of such conduct, then the chief administrative
judge of the state of New York shall, in accordance with this section,
automatically vacate, dismiss and expunge such conviction in accordance
with section 160.50 of this chapter, and the office of court
administration shall immediately notify the state division of criminal
justice services, state department of corrections and community
supervision and the appropriate local correctional facility which shall
immediately effectuate the appropriate relief. Such notification to the
division of criminal justice services shall also direct that such agency
notify all relevant police and law enforcement agencies of their duty to
destroy and/or mark records related to such case in accordance with
section 160.50 of this chapter. Nothing in this section shall prevent a
person who believes his or her sentence is required by this section to
be vacated, dismissed and/or expunged from filing a petition with the
court to effectuate all appropriate relief.

2. (a) When a person is serving or has completed serving a sentence
for a conviction in this state, whether by trial verdict or guilty plea,
under former article two hundred twenty-one of the penal law, and such
person's conduct as alleged in the accusatory instrument and/or shown by
the guilty plea or trial verdict, or shown by other information: (i)
would not have been a crime under article two hundred twenty-two of the
penal law, had such article two hundred twenty-two rather than former
article two hundred twenty-one of the penal law been in effect at the
time of such conduct; or (ii) under such circumstances such person would
have been guilty of a lesser or potentially less onerous offense under
such article two hundred twenty-two than such former article two hundred
twenty-one of the penal law; then such person may petition the court of
conviction pursuant to this article for vacatur of such conviction.

(b) (i) Upon receiving a served and filed motion under paragraph (a)
of this subdivision, the court shall presume that any conviction by plea
was not knowing, voluntary and intelligent and that any conviction by
verdict and any accompanying sentence constitutes cruel and unusual
punishment under the state constitution if either has severe or ongoing
consequences, including but not limited to potential or actual
immigration consequences; and the court shall further presume that the
movant satisfies the criteria in such paragraph (a) and thereupon make
such finding and grant the motion to vacate such conviction on such
grounds in a written order unless the party opposing the motion proves,
by clear and convincing evidence, that the movant does not satisfy the
criteria to bring such motion.

(ii) If the petition meets the criteria in subparagraph (ii) of
paragraph (a) of this subdivision, the court after affording the parties
an opportunity to be heard and present evidence, may substitute, unless
it is not in the interests of justice to do so, a conviction for an
appropriate lesser offense under article two hundred twenty-two of the
penal law.

(c) In the event of any vacatur and/or substitution pursuant to this
subdivision, the office of court administration shall immediately notify
the state division of criminal justice services concerning such
determination. Such notification to the division of criminal justice
services shall also direct that such agency notify all relevant police
and law enforcement agencies of their duty to destroy and/or mark
records related to such case in accordance with section 160.50 of this
chapter or, where conviction for a crime is substituted pursuant to this
subdivision, update such agencies' records accordingly.

3. Under no circumstances may substitution under this section result
in the imposition of a term of imprisonment or sentencing term,
obligation or condition that is in any way either harsher than the
original sentence or harsher than the sentence authorized for any
substituted lesser offense.

4. (a) If the judge who originally sentenced the movant for such
offense is not reasonably available, then the presiding judge for such
court shall designate another judge authorized to act in the appropriate
jurisdiction to determine the petition or application.

(b) Unless requested by the movant, no hearing is necessary to grant
an application filed under subdivision two of this section.

(c) When a felony conviction is vacated pursuant to this section and a
lesser offense that is a misdemeanor or violation is substituted for
such conviction, such lesser offense shall be considered a misdemeanor
or violation, as the case may be, for all purposes. When a misdemeanor
conviction is vacated pursuant to this section and a lesser offense that
is a violation is substituted for such conviction, such lesser offense
shall be considered a violation for all purposes.

(d) Nothing in this section is intended to or shall diminish or
abrogate any rights or remedies otherwise available to a defendant,
petitioner or applicant. Relief under this section is available
notwithstanding that the judgment was for a violation of former sections
221.05, 221.10, 221.15, 221.20, 221.35 or 221.40 of the penal law in
effect prior to the effective date of this paragraph and that the
underlying action or proceeding has already been vacated, dismissed and
expunged.

(e) Nothing in this and related sections of law is intended to
diminish or abrogate the finality of judgments in any case not falling
within the purview of this section.

(f) The provisions of this section shall be available, used and
applied in parallel fashion by the family court and the criminal courts
to juvenile delinquency adjudications, adolescent offender adjudications
and youthful offender adjudications.

(g) The chief administrator of the courts shall promulgate all
necessary rules and make available all necessary forms to enable the
filing of the petitions and applications provided in this section no
later than sixty days following the effective date of this section. All
sentences eligible for automatic vacatur, dismissal and expungement
pursuant to subdivision one of this section shall be identified and the
required entities notified within one year of the effective date of this
section.