§ 440.46 Motion for resentence; certain controlled substance offenders.

1. Any person in the custody of the department of corrections and
community supervision convicted of a class B felony offense defined in
article two hundred twenty of the penal law which was committed prior to
January thirteenth, two thousand five, who is serving an indeterminate
sentence with a maximum term of more than three years, may, except as
provided in subdivision five of this section, upon notice to the
appropriate district attorney, apply to be resentenced to a determinate
sentence in accordance with sections 60.04 and 70.70 of the penal law in
the court which imposed the sentence.

2. As part of any such application, the defendant may also move to be
resentenced to a determinate sentence in accordance with section 70.70
of the penal law for any one or more class C, D, or E felony offenses
defined in article two hundred twenty or two hundred twenty-one of the
penal law, the sentence or sentences for which were imposed by the
sentencing court at the same time or were included in the same order of
commitment as such class B felony.

3. The provisions of section twenty-three of chapter seven hundred
thirty-eight of the laws of two thousand four shall govern the
proceedings on and determination of a motion brought pursuant to this
section; provided, however that the court's consideration of the
institutional record of confinement of such person shall include but not
be limited to such person's participation in or willingness to
participate in treatment or other programming while incarcerated and
such person's disciplinary history. The fact that a person may have been
unable to participate in treatment or other programming while
incarcerated despite such person's willingness to do so shall not be
considered a negative factor in determining a motion pursuant to this
section.

4. 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,
including any appeals.

5. The provisions of this section shall not apply to any person who is
serving a sentence on a conviction for or has a predicate felony
conviction for an exclusion offense. For purposes of this subdivision,
an "exclusion offense" is:

(a) a crime for which the person was previously convicted within the
preceding ten years, excluding any time during which the offender was
incarcerated for any reason between the time of commission of the
previous felony and the time of commission of the present felony, which
was: (i) a violent felony offense as defined in section 70.02 of the
penal law; or (ii) any other offense for which a merit time allowance is
not available pursuant to subparagraph (ii) of paragraph (d) of
subdivision one of section eight hundred three of the correction law; or

(b) a second violent felony offense pursuant to section 70.04 of the
penal law or a persistent violent felony offense pursuant to section
70.08 of the penal law for which the person has previously been
adjudicated.