§ 440.47 Motion for resentence; domestic violence cases.

1. (a) Notwithstanding any contrary provision of law, any person
confined in an institution operated by the department of correction and
community supervision serving a sentence with a minimum or determinate
term of eight years or more for an offense committed prior to the
effective date of this section and eligible for an alternative sentence
pursuant to section 60.12 of the penal law may, on or after such
effective date, submit to the judge or justice who imposed the original
sentence upon such person a request to apply for resentencing in
accordance with section 60.12 of the penal law. Such person must include
in his or her request documentation proving that she or he is confined
in an institution operated by the department of corrections and
community supervision serving a sentence with a minimum or determinate
term of eight years or more for an offense committed prior to the
effective date of this section and that she or he is serving such
sentence for any offense eligible for an alternative sentence under
section 60.12 of the penal law.

(b) If, at the time of such person's request to apply for resentencing
pursuant to this section, the original sentencing judge or justice is a
judge or justice of a court of competent jurisdiction, but such court is
not the court in which the original sentence was imposed, then the
request shall be randomly assigned to another judge or justice of the
court in which the original sentence was imposed. If the original
sentencing judge is no longer a judge or justice of a court of competent
jurisdiction, then the request shall be randomly assigned to another
judge or justice of the court.

(c) If the court finds that such person has met the requirements to
apply for resentencing in paragraph (a) of this subdivision, the court
shall notify such person that he or she may submit an application for
resentencing. Upon such notification, the person 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 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.

(d) If the court finds that such person has not met the requirements
to apply for resentencing in paragraph (a) of subdivision one of this
section, the court shall notify such person and dismiss his or her
request without prejudice.

2. (a) Upon the court's receipt of an application for resentencing,
the court shall promptly notify the appropriate district attorney and
provide such district attorney with a copy of the application.

(b) If the judge or justice that received the application is not the
original sentencing judge or justice, the application may be referred to
the original sentencing judge or justice provided that he or she is a
judge or justice of a court of competent jurisdiction and that the
applicant and the district attorney agree that the application should be
referred.

(c) An application for resentencing pursuant to this section must
include at least two pieces of evidence corroborating the applicant's
claim that he or she was, at the time of the offense, a victim of
domestic violence subjected to substantial physical, sexual or
psychological abuse inflicted by a member of the same family or
household as the applicant as such term is defined in subdivision one of
section 530.11 of this chapter.

At least one piece of evidence must be either a court record,
pre-sentence report, social services record, hospital record, sworn
statement from a witness to the domestic violence, law enforcement
record, domestic incident report, or order of protection. Other evidence
may include, but shall not be limited to, local and state department of
corrections records, a showing based in part on documentation prepared
at or near the time of the commission of the offense or the prosecution
thereof tending to support the person's claim, or when there is
verification of consultation with a licensed medical or mental health
care provider, employee of a court acting within the scope of his or her
employment, member of the clergy, attorney, social worker, or rape
crisis counselor as defined in section forty-five hundred ten of the
civil practice law and rules, or other advocate acting on behalf of an
agency that assists victims of domestic violence for the purpose of
assisting such person with domestic violence victim counseling or
support.

(d) If the court finds that the applicant has not complied with the
provisions of paragraph (c) of this subdivision, the court shall dismiss
the application without prejudice.

(e) If the court finds that the applicant has complied with the
provisions of paragraph (c) of this subdivision, the court shall conduct
a hearing to aid in making its determination of whether the applicant
should be resentenced in accordance with section 60.12 of the penal law.
At such hearing the court shall determine any controverted issue of fact
relevant to the issue of sentencing. Reliable hearsay shall be
admissible at such hearings.

The court may consider any fact or circumstances relevant to the
imposition of a new sentence which are submitted by the applicant or the
district attorney and may, in addition, consider the institutional
record of confinement of such person, but shall not order a new
pre-sentence investigation and report or entertain any matter
challenging the underlying basis of the subject conviction. The court's
consideration of the institutional record of confinement of such
applicant shall include, but not be limited to, such applicant's
participation in or willingness to participate in programming such as
domestic violence, parenting and substance abuse treatment while
incarcerated and such applicant's disciplinary history. The fact that
the applicant may have been unable to participate in treatment or other
programming while incarcerated despite such applicant's willingness to
do so shall not be considered a negative factor in determining a motion
pursuant to this section.

(f) If the court determines that the applicant should not be
resentenced in accordance with section 60.12 of the penal law, the court
shall inform such applicant of its decision and shall enter an order to
that effect. Any order issued by a court pursuant to this section must
include written findings of fact and the reasons for such order.

(g) If the court determines that the applicant should be resentenced
in accordance with section 60.12 of the penal law, the court shall
notify the applicant that, unless he or she withdraws the application or
appeals from such order, the court will enter an order vacating the
sentence originally imposed and imposing the new sentence to be imposed
as authorized by section 60.12 of the penal law. Any order issued by a
court pursuant to this section must include written findings of fact and
the reasons for such order.

3. An appeal may be taken as of right in accordance with applicable
provisions of this chapter: (a) from an order denying resentencing; or
(b) from a new sentence imposed under this provision and may be based on
the grounds that (i) the term of the new sentence is harsh or excessive;
or (ii) that the term of the new sentence is unauthorized as a matter of
law. An appeal in accordance with the applicable provisions of this
chapter may also be taken as of right by the applicant from an order
specifying and informing such applicant of the term of the determinate
sentence the court would impose upon resentencing on the ground that the
term of the proposed sentence is harsh or excessive; upon remand to the
sentencing court following such appeal the applicant shall be given an
opportunity to withdraw an application for resentencing before any
resentence is imposed. The applicant may request that the court assign
him or her an attorney for the preparation of and proceedings on any
appeals regarding his or her application for resentencing pursuant to
this section. The attorney shall be assigned in accordance with the
provisions of 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.

4. In calculating the new term to be served by the applicant pursuant
to section 60.12 of the penal law, such applicant shall be credited for
any jail time credited towards the subject conviction as well as any
period of incarceration credited toward the sentence originally imposed.