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

                                  4314

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2013
                               ___________

Introduced  by  M.  of  A.  AUBRY, CLARK, PERRY, LIFTON, PEOPLES-STOKES,
  BOYLAND,  TITONE,  PAULIN,  BRONSON,  STEVENSON,  CASTRO,   ZEBROWSKI,
  O'DONNELL, PRETLOW, JAFFEE, CRESPO, SCHIMEL, MAGNARELLI -- Multi-Spon-
  sored  by -- M. of A. ARROYO, BRENNAN, GLICK, GOODELL, HOOPER, LENTOL,
  MARKEY, ORTIZ, RAIA, ROSENTHAL, SCARBOROUGH,  TITUS,  WALTER,  WEISEN-
  BERG, WRIGHT -- read once and referred to the Committee on Codes

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to sentencing and resentencing in domestic violence cases

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  60.12 of the penal law, as added by chapter 1 of
the laws of 1998, is amended to read as follows:
S 60.12 Authorized disposition; alternative [indeterminate] sentence [of
          imprisonment]; domestic violence cases.
  1. Notwithstanding any other provision of law, where a court is impos-
ing sentence UPON A PERSON pursuant to  section  70.00,  70.02  [upon  a
conviction for an offense enumerated in subdivision one of such section]
OR  70.06  OF  THIS TITLE, other than FOR an offense defined in [article
one hundred thirty of this chapter] SECTION 125.26, 125.27,  SUBDIVISION
FIVE  OF SECTION 125.25, OR ARTICLE FOUR HUNDRED NINETY OF THIS CHAPTER,
AN ATTEMPT OR CONSPIRACY TO COMMIT  ANY  SUCH  OFFENSE,  OR  WHERE  SUCH
PERSON  IS  REQUIRED  TO  REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE
SIX-C OF THE CORRECTION LAW, and is authorized or required  pursuant  to
[such  section] SECTIONS 70.00, 70.02 OR 70.06 to impose a [determinate]
sentence of imprisonment [for such offense], the court, upon a  determi-
nation following a hearing that
  (a)  AT  THE  TIME  OF  THE INSTANT OFFENSE, the defendant was [the] A
victim of DOMESTIC VIOLENCE SUBJECTED TO SUBSTANTIAL physical, sexual or
psychological abuse [by the victim or intended victim of such  offense,]
INFLICTED  BY  A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06253-01-3

              

A. 4314                             2

AS SUCH TERM IS DEFINED IN SUBDIVISION ONE  OF  SECTION  530.11  OF  THE
CRIMINAL PROCEDURE LAW;
  (b)  such  abuse was a SIGNIFICANT CONTRIBUTING factor [in causing the
defendant to commit such offense  and]    TO  THE  DEFENDANT'S  CRIMINAL
BEHAVIOR;
  (c) [the victim or intended victim of such offense was a member of the
same  family  or  household  as the defendant as such term is defined in
subdivision one of section 530.11 of the criminal procedure law, may, in
lieu of imposing such determinate sentence of  imprisonment,  impose  an
indeterminate  sentence  of imprisonment in accordance with subdivisions
two and three of this section.] HAVING REGARD FOR THE NATURE AND CIRCUM-
STANCES OF THE CRIME AND THE HISTORY, CHARACTER  AND  CONDITION  OF  THE
DEFENDANT,  THAT THE SENTENCE OF IMPRISONMENT PURSUANT TO SECTION 70.00,
70.02 OR 70.06 OF THIS TITLE WOULD BE UNDULY HARSH MAY INSTEAD IMPOSE  A
SENTENCE  IN  ACCORDANCE WITH SUBDIVISION TWO, THREE, FOUR, FIVE, SIX OR
SEVEN OF THIS SECTION.
  A COURT MAY  DETERMINE  THAT  SUCH  ABUSE  CONSTITUTES  A  SIGNIFICANT
CONTRIBUTING  FACTOR  PURSUANT  TO  PARAGRAPH  (B)  OF  THIS SUBDIVISION
REGARDLESS OF WHETHER THE DEFENDANT RAISED A DEFENSE PURSUANT TO ARTICLE
THIRTY-FIVE, ARTICLE FORTY, OR SUBDIVISION ONE OF SECTION 125.25 OF THIS
CHAPTER.
  AT THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE  SENTENCED
PURSUANT  TO  THIS  SECTION,  THE  COURT SHALL CONSIDER ORAL AND WRITTEN
ARGUMENTS, TAKE TESTIMONY FROM WITNESSES OFFERED BY  EITHER  PARTY,  AND
CONSIDER  RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION. RELI-
ABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS.
  2. [The maximum term of an indeterminate sentence imposed pursuant  to
subdivision  one of this section must be fixed by the court as follows:]
WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  PURSUANT
TO SECTION 70.02 OF THIS TITLE, THE COURT MAY IMPOSE A DEFINITE SENTENCE
OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE
PROVISIONS  OF  SECTION 65.00 OF THIS TITLE, OR MAY FIX A TERM OF IMPRI-
SONMENT AS FOLLOWS:
  (a) For a class B felony, the term must be at least  [six  years]  ONE
YEAR and must not exceed [twenty-five] FIVE years;
  (b) For a class C felony, the term must be at least [four and one-half
years] ONE YEAR and must not exceed [fifteen] THREE AND ONE-HALF years;
  (c)  For a class D felony, the term must be at least [three years] ONE
YEAR and must not exceed [seven] TWO years; and
  (d) For a class E felony, the term must be [at least three years]  ONE
YEAR and must not exceed [four] ONE AND ONE-HALF years.
  3. [The minimum period of imprisonment under an indeterminate sentence
imposed pursuant to subdivision one of this section must be fixed by the
court  at  one-half of the maximum term imposed and must be specified in
the sentence] WHERE A COURT WOULD OTHERWISE  BE  REQUIRED  TO  IMPOSE  A
SENTENCE  FOR A CLASS A FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE OR TO SUBDIVISION TWO OR THREE OF SECTION 70.71 OF THIS TITLE, THE
COURT MAY FIX A TERM OF IMPRISONMENT OF AT LEAST FIVE YEARS AND  NOT  TO
EXCEED FIFTEEN YEARS.
  4.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION SIX OF SECTION 70.06 OF THIS  TITLE,  THE  COURT
MAY FIX A TERM OF IMPRISONMENT AS FOLLOWS:
  (A)  FOR  A  CLASS B FELONY, THE TERM MUST BE AT LEAST THREE YEARS AND
MUST NOT EXCEED EIGHT YEARS;
  (B) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWO  AND  ONE-HALF
YEARS AND MUST NOT EXCEED FIVE YEARS;

A. 4314                             3

  (C) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWO YEARS AND MUST
NOT EXCEED THREE YEARS;
  (D)  FOR  A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF
YEARS AND MUST NOT EXCEED TWO YEARS.
  5. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
A  CLASS  B,  C, D OR E FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH THE PROVISIONS
OF SUBDIVISION TWO OF SECTION 70.70 OF THIS TITLE.
  6. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS  SECTION,  WHERE  A
COURT  WOULD  OTHERWISE  BE  REQUIRED  TO  IMPOSE A SENTENCE PURSUANT TO
SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, THE COURT MAY IMPOSE A
SENTENCE IN ACCORDANCE WITH  THE  PROVISIONS  OF  SUBDIVISION  THREE  OF
SECTION 70.70 OF THIS TITLE.
  7.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, WHERE  THE
PRIOR  FELONY  CONVICTION  WAS  FOR  A FELONY OFFENSE DEFINED IN SECTION
70.02 OF THIS TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE  WITH
THE PROVISIONS OF SUBDIVISION FOUR OF SECTION 70.70 OF THIS TITLE.
  S  2.  Paragraphs  (a), (b), (c), (d), (e) and (f) of subdivision 2 of
section 70.45 of the penal law, as amended by chapter 7 of the  laws  of
2007, are amended to read as follows:
  (a)  such  period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70  of
this  article  OR SUBDIVISION FIVE OF SECTION 60.12 OF THIS TITLE upon a
conviction of a class D or class E felony offense;
  (b) such period shall be not less than one  year  nor  more  than  two
years  whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article  OR  SUBDIVISION
FIVE  OF  SECTION  60.12 OF THIS TITLE upon a conviction of a class B or
class C felony offense;
  (c) such period shall be not less than one  year  nor  more  than  two
years  whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision three or four of section 70.70  of  this  article  OR
SUBDIVISION  SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon conviction
of a class D or class E felony offense;
  (d) such period shall be not less than one and one-half years nor more
than three years whenever a  determinate  sentence  of  imprisonment  is
imposed  pursuant  to subdivision three or four of section 70.70 of this
article OR SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE  upon
conviction of a class B felony or class C felony offense;
  (e) such period shall be not less than one and one-half years nor more
than  three  years  whenever  a  determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of  this  article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class D or class E violent felony offense;
  (f) such period shall be not less than two and one-half years nor more
than  five  years  whenever  a  determinate  sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of  this  article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class B or class C violent felony offense.
  S  3.  The  criminal  procedure law is amended by adding a new section
440.47 to read as follows:
S 440.47 MOTION FOR RESENTENCE; DOMESTIC VIOLENCE CASES.
  1. NOTWITHSTANDING ANY CONTRARY PROVISION OF  LAW,  ON  THE  EFFECTIVE
DATE  OF  THIS  SECTION,  ANY PERSON IN THE CUSTODY OF THE DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION SERVING A SENTENCE WITH A  MINIMUM

A. 4314                             4

OR  DETERMINATE  TERM  OF  EIGHT  YEARS OR MORE FOR AN OFFENSE COMMITTED
PRIOR TO SUCH EFFECTIVE DATE AND ELIGIBLE FOR  AN  ALTERNATIVE  SENTENCE
PURSUANT  TO SECTION 60.12 OF THE PENAL LAW MAY SUBMIT AN APPLICATION TO
BE  RESENTENCED IN ACCORDANCE WITH SECTION 60.12 OF THE PENAL LAW IN THE
COURT WHICH IMPOSED THE ORIGINAL SENTENCE.
  SUCH APPLICATION FOR RESENTENCING  UNDER  THIS  SECTION  MUST  INCLUDE
EVIDENCE  CORROBORATING  SUCH  PERSON'S CLAIM THAT HE OR SHE WAS, AT THE
TIME OF THE COMMITMENT OFFENSE, A VICTIM OF DOMESTIC VIOLENCE  SUBJECTED
TO  SUBSTANTIAL  PHYSICAL,  SEXUAL OR PSYCHOLOGICAL ABUSE INFLICTED BY A
MEMBER OF HIS OR HER SAME FAMILY OR HOUSEHOLD AS SUCH TERM IS DEFINED IN
SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER.
  SUCH EVIDENCE MAY INCLUDE, BUT SHALL NOT BE LIMITED TO, WITNESS STATE-
MENTS, COURT RECORDS, PRE-SENTENCE  REPORTS,  SOCIAL  SERVICES  RECORDS,
CITY  AND  STATE  DEPARTMENT  OF  CORRECTIONS  AND COMMUNITY SUPERVISION
RECORDS, HOSPITAL RECORDS, LAW ENFORCEMENT  RECORDS,  DOMESTIC  INCIDENT
REPORTS,  ORDERS OF PROTECTION, 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.
  2. THE APPLICATION FOR RESENTENCING SHALL  BE  REFERRED  FOR  DETERMI-
NATION  TO  THE  JUDGE OR JUSTICE WHO IMPOSED THE ORIGINAL SENTENCE UPON
THE APPLICANT. IF, AT THE TIME OF THE APPLICATION, THE ORIGINAL SENTENC-
ING 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 APPLICATION SHALL BE RANDOMLY ASSIGNED TO
ANOTHER JUDGE OR JUSTICE OF THE COURT IN WHICH THE ORIGINAL SENTENCE WAS
IMPOSED, PROVIDED THAT THE DISTRICT ATTORNEY  AND  APPLICANT  MAY  AGREE
THAT  THE  APPLICATION  BE REFERRED TO THE ORIGINAL SENTENCING JUDGE. IF
THE ORIGINAL SENTENCING JUDGE IS NO LONGER A JUDGE OR JUSTICE OF A COURT
OF COMPETENT  JURISDICTION,  THEN  THE  APPLICATION  SHALL  BE  RANDOMLY
ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE COURT.
  3.  IF,  IN  REVIEWING  THE APPLICATION, THE COURT DETERMINES THAT THE
APPLICANT DOES NOT STAND CONVICTED OF AN OFFENSE ELIGIBLE FOR AN  ALTER-
NATIVE  SENTENCE  PURSUANT  TO SECTION 60.12 OF THE PENAL LAW OR HAS NOT
COMPLIED WITH THE PROVISIONS OF SUBDIVISION ONE  OF  THIS  SECTION,  THE
COURT SHALL ISSUE AN ORDER DISMISSING THE APPLICATION WITHOUT PREJUDICE.
  4. (A) UPON THE COURT'S ACCEPTANCE OF THE APPLICATION, THE COURT SHALL
PROMPTLY  NOTIFY  THE  APPROPRIATE  DISTRICT  ATTORNEY  AND PROVIDE SUCH
DISTRICT ATTORNEY WITH A COPY OF THE PETITION.
  (B) AFTER SUCH NOTIFICATION, THE COURT MAY CONDUCT A HEARING TO AID IN
MAKING ITS DETERMINATION OF WHETHER THE  APPLICANT  MEETS  THE  CRITERIA
ESTABLISHED  IN  SUBDIVISION  ONE  OF SECTION 60.12 OF THE PENAL LAW AND
SHOULD BE RESENTENCED PURSUANT TO THIS  SECTION.  AT  SUCH  HEARING  THE
COURT  SHALL  DETERMINE ANY CONTROVERTED ISSUE OF FACT RELEVANT TO THESE
CRITERIA AND TO THE ISSUE  OF  SENTENCING.  RELIABLE  HEARSAY  SHALL  BE
ADMISSIBLE AT SUCH HEARINGS.
  (C)  THE COURT MAY CONSIDER ANY FACTS 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

A. 4314                             5

RECORD OF CONFINEMENT OF SUCH PERSON, BUT SHALL NOT ORDER A NEW PRE-SEN-
TENCE  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 DISCI-
PLINARY  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.
  (D) IF THE COURT DETERMINES, AFTER REVIEW OF THE SUBMISSIONS  AND  THE
FINDINGS  OF  FACT  MADE  IN  CONNECTION WITH THE APPLICATION, THAT SUCH
APPLICANT MEETS THE CRITERIA ESTABLISHED IN SUBDIVISION ONE  OF  SECTION
60.12  OF  THE  PENAL  LAW  AND  SHOULD  BE RESENTENCED PURSUANT TO THIS
SECTION, THE COURT SHALL INFORM SUCH APPLICANT OF THE  NEW  SENTENCE  IT
WOULD IMPOSE UPON SUCH CONVICTION, AS AUTHORIZED BY SECTION 60.12 OF THE
PENAL  LAW, AND SHALL ENTER AN ORDER TO THAT EFFECT. IF THE COURT DETER-
MINES THAT SUCH PERSON DOES NOT MEET THE CRITERIA ESTABLISHED IN  SUBDI-
VISION  ONE  OF  SECTION 60.12 OF THE PENAL LAW AND SHOULD NOT BE RESEN-
TENCED, THE COURT SHALL INFORM SUCH APPLICANT OF ITS DECISION AND  SHALL
ENTER AN ORDER TO THAT EFFECT.
  (E)  THE COURT SHALL NOTIFY THE APPLICANT THAT, UNLESS HE OR SHE WITH-
DRAWS 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 WRIT-
TEN FINDINGS OF FACT AND THE REASONS FOR SUCH ORDER.
  5. 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. 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.
  6. 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 APPLICATIONS PURSUANT TO THIS SECTION,
INCLUDING ANY APPEALS.
  7.  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.
  S 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
amended by section 10 of part AAA of chapter 56 of the laws of 2009,  is
amended to read as follows:
  1.  Provided  that  a  certificate  granting leave to appeal is issued
pursuant to section 460.20, an appeal may, except as provided in  subdi-
vision  two, be taken to the court of appeals by either the defendant or
the people from any adverse or partially adverse order of an  intermedi-
ate  appellate  court  entered upon an appeal taken to such intermediate
appellate court pursuant to section 450.10, 450.15, or 450.20,  or  from
an order granting or denying a motion to set aside an order of an inter-
mediate  appellate  court  on  the  ground  of ineffective assistance or

A. 4314                             6

wrongful deprivation of appellate counsel, or by either the defendant or
the people from any adverse or partially adverse order of an  intermedi-
ate  appellate  court  entered upon an appeal taken to such intermediate
appellate  court  from  an  order  entered pursuant to section 440.46 OR
SECTION 440.47 of this chapter. An order of  an  intermediate  appellate
court  is  adverse to the party who was the appellant in such court when
it affirms the judgment, sentence or order appealed from, and is adverse
to the party who was the respondent in such court when it  reverses  the
judgment,  sentence  or  order  appealed  from. An appellate court order
which modifies a judgment or order appealed from is partially adverse to
each party.
  S 5. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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

                                 4314--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2013
                               ___________

Introduced  by  M.  of  A.  AUBRY, CLARK, PERRY, LIFTON, PEOPLES-STOKES,
  BOYLAND,  TITONE,  PAULIN,  BRONSON,  STEVENSON,  CASTRO,   ZEBROWSKI,
  O'DONNELL, PRETLOW, JAFFEE, CRESPO, SCHIMEL, MAGNARELLI -- Multi-Spon-
  sored by -- M. of A.  ARROYO, BRENNAN, GLICK, GOODELL, HOOPER, LENTOL,
  MARKEY,  ORTIZ,  RAIA,  ROSENTHAL, SCARBOROUGH, TITUS, WALTER, WEISEN-
  BERG, WRIGHT -- read once and referred to the Committee  on  Codes  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation to sentencing and resentencing in domestic violence cases

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 60.12 of the penal law, as added by  chapter  1  of
the laws of 1998, is amended to read as follows:
S 60.12 Authorized disposition; alternative [indeterminate] sentence [of
          imprisonment]; domestic violence cases.
  1. Notwithstanding any other provision of law, where a court is impos-
ing  sentence  UPON  A  PERSON  pursuant to section 70.00, 70.02 [upon a
conviction for an offense enumerated in subdivision one of such section]
OR 70.06 OF THIS TITLE, other than FOR an offense  defined  in  [article
one  hundred thirty of this chapter] SECTION 125.26, 125.27, SUBDIVISION
FIVE OF SECTION 125.25, OR ARTICLE  490  OF  THIS  CHAPTER,  OR  FOR  AN
OFFENSE  WHICH  WOULD  REQUIRE SUCH PERSON TO REGISTER AS A SEX OFFENDER
PURSUANT TO ARTICLE 6-C OF THE CORRECTION LAW, AN ATTEMPT OR  CONSPIRACY
TO  COMMIT  ANY  SUCH  OFFENSE and is authorized or required pursuant to
[such section] SECTIONS 70.00, 70.02 OR 70.06 to impose a  [determinate]
sentence  of imprisonment [for such offense], the court, upon a determi-
nation following a hearing that (a) AT THE TIME OF THE INSTANT  OFFENSE,
the  defendant  was  [the]  A  victim  of DOMESTIC VIOLENCE SUBJECTED TO
SUBSTANTIAL physical, sexual or psychological abuse [by  the  victim  or
intended  victim  of  such  offense,]  INFLICTED BY A MEMBER OF THE SAME

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06253-03-3
              

A. 4314--A                          2

FAMILY OR HOUSEHOLD AS THE DEFENDANT AS SUCH TERM IS DEFINED IN SUBDIVI-
SION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW; (b) such abuse
was a SIGNIFICANT CONTRIBUTING  factor  [in  causing  the  defendant  to
commit such offense and]  TO THE DEFENDANT'S CRIMINAL BEHAVIOR; (c) [the
victim or intended victim of such offense was a member of the same fami-
ly  or household as the defendant as such term is defined in subdivision
one of section 530.11 of the criminal procedure law,  may,  in  lieu  of
imposing such determinate sentence of imprisonment, impose an indetermi-
nate  sentence  of  imprisonment in accordance with subdivisions two and
three of this section.] HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF
THE CRIME AND TO THE HISTORY, CHARACTER AND CONDITION OF THE  DEFENDANT,
THAT  A  SENTENCE  OF  IMPRISONMENT  PURSUANT TO SECTION 70.00, 70.02 OR
70.06 OF THIS TITLE WOULD BE UNDULY HARSH MAY INSTEAD IMPOSE A  SENTENCE
IN  ACCORDANCE  WITH SUBDIVISION TWO, THREE, FOUR, FIVE, SIX OR SEVEN OF
THIS SECTION.
  A COURT MAY  DETERMINE  THAT  SUCH  ABUSE  CONSTITUTES  A  SIGNIFICANT
CONTRIBUTING  FACTOR  PURSUANT  TO  PARAGRAPH  (B)  OF  THIS SUBDIVISION
REGARDLESS OF WHETHER THE DEFENDANT RAISED A DEFENSE PURSUANT TO ARTICLE
THIRTY-FIVE, ARTICLE FORTY, OR SUBDIVISION ONE OF SECTION 125.25 OF THIS
CHAPTER.
  AT THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE  SENTENCED
PURSUANT  TO  THIS  SECTION,  THE  COURT SHALL CONSIDER ORAL AND WRITTEN
ARGUMENTS, TAKE TESTIMONY FROM WITNESSES OFFERED BY  EITHER  PARTY,  AND
CONSIDER  RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION. RELI-
ABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS.
  2. [The maximum term of an indeterminate sentence imposed pursuant  to
subdivision  one of this section must be fixed by the court as follows:]
WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  PURSUANT
TO SECTION 70.02 OF THIS TITLE, THE COURT MAY IMPOSE A DEFINITE SENTENCE
OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE
PROVISIONS  OF  SECTION 65.00 OF THIS TITLE, OR MAY FIX A TERM OF IMPRI-
SONMENT AS FOLLOWS:
  (a) For a class B felony, the term must be at least  [six  years]  ONE
YEAR and must not exceed [twenty-five] FIVE years;
  (b) For a class C felony, the term must be at least [four and one-half
years] ONE YEAR and must not exceed [fifteen] THREE AND ONE-HALF years;
  (c)  For a class D felony, the term must be at least [three years] ONE
YEAR and must not exceed [seven] TWO years; and
  (d) For a class E felony, the term must be [at least three years]  ONE
YEAR and must not exceed [four] ONE AND ONE-HALF years.
  3. [The minimum period of imprisonment under an indeterminate sentence
imposed pursuant to subdivision one of this section must be fixed by the
court  at  one-half of the maximum term imposed and must be specified in
the sentence] WHERE A COURT WOULD OTHERWISE  BE  REQUIRED  TO  IMPOSE  A
SENTENCE  FOR A CLASS A FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE OR TO SUBDIVISION TWO OR THREE OF SECTION 70.71 OF THIS TITLE, THE
COURT MAY FIX A TERM OF IMPRISONMENT OF AT LEAST FIVE YEARS AND  NOT  TO
EXCEED FIFTEEN YEARS.
  4.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION SIX OF SECTION 70.06 OF THIS  TITLE,  THE  COURT
MAY FIX A TERM OF IMPRISONMENT AS FOLLOWS:
  (A)  FOR  A  CLASS B FELONY, THE TERM MUST BE AT LEAST THREE YEARS AND
MUST NOT EXCEED EIGHT YEARS;
  (B) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST TWO  AND  ONE-HALF
YEARS AND MUST NOT EXCEED FIVE YEARS;

A. 4314--A                          3

  (C) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWO YEARS AND MUST
NOT EXCEED THREE YEARS;
  (D)  FOR  A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF
YEARS AND MUST NOT EXCEED TWO YEARS.
  5. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
A  CLASS  B,  C, D OR E FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH THE PROVISIONS
OF SUBDIVISION TWO OF SECTION 70.70 OF THIS TITLE.
  6. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS  SECTION,  WHERE  A
COURT  WOULD  OTHERWISE  BE  REQUIRED  TO  IMPOSE A SENTENCE PURSUANT TO
SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, THE COURT MAY IMPOSE A
SENTENCE IN ACCORDANCE WITH  THE  PROVISIONS  OF  SUBDIVISION  THREE  OF
SECTION 70.70 OF THIS TITLE.
  7.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, WHERE  THE
PRIOR  FELONY  CONVICTION  WAS  FOR  A FELONY OFFENSE DEFINED IN SECTION
70.02 OF THIS TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE  WITH
THE PROVISIONS OF SUBDIVISION FOUR OF SECTION 70.70 OF THIS TITLE.
  S  2.  Paragraphs  (a), (b), (c), (d), (e) and (f) of subdivision 2 of
section 70.45 of the penal law, as amended by chapter 7 of the  laws  of
2007, are amended to read as follows:
  (a)  such  period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70  of
this  article  OR SUBDIVISION FIVE OF SECTION 60.12 OF THIS TITLE upon a
conviction of a class D or class E felony offense;
  (b) such period shall be not less than one  year  nor  more  than  two
years  whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article  OR  SUBDIVISION
FIVE  OF  SECTION  60.12 OF THIS TITLE upon a conviction of a class B or
class C felony offense;
  (c) such period shall be not less than one  year  nor  more  than  two
years  whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision three or four of section 70.70  of  this  article  OR
SUBDIVISION  SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon conviction
of a class D or class E felony offense;
  (d) such period shall be not less than one and one-half years nor more
than three years whenever a  determinate  sentence  of  imprisonment  is
imposed  pursuant  to subdivision three or four of section 70.70 of this
article OR SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE  upon
conviction of a class B felony or class C felony offense;
  (e) such period shall be not less than one and one-half years nor more
than  three  years  whenever  a  determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of  this  article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class D or class E violent felony offense;
  (f) such period shall be not less than two and one-half years nor more
than  five  years  whenever  a  determinate  sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of  this  article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class B or class C violent felony offense.
  S  3.  The  criminal  procedure law is amended by adding a new section
440.47 to read as follows:
S 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

A. 4314--A                          4

TERM  OF  EIGHT  YEARS  OR  MORE  FOR AN OFFENSE COMMITTED PRIOR TO SUCH
EFFECTIVE DATE AND ELIGIBLE FOR  AN  ALTERNATIVE  SENTENCE  PURSUANT  TO
SECTION  60.12  OF  THE PENAL LAW MAY, ON OR AFTER THE EFFECTIVE DATE OF
THIS  SECTION,  SUBMIT  TO THE JUDGE OR JUSTICE WHO IMPOSED THE ORIGINAL
SENTENCE UPON SUCH PERSON A REQUEST TO APPLY FOR RESENTENCING IN ACCORD-
ANCE 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  SUBDIVISION  ONE  OF  THIS
SECTION, 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 DOMES-
TIC 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-SEN-
TENCE  REPORT,  SOCIAL SERVICES RECORD, HOSPITAL RECORD, SWORN STATEMENT
FROM A WITNESS TO THE DOMESTIC VIOLENCE, LAW ENFORCEMENT RECORD,  DOMES-
TIC  INCIDENT  REPORT,  OR  ORDER  OF  PROTECTION.    OTHER EVIDENCE MAY

A. 4314--A                          5

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 VERIFI-
CATION 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  ADMISSI-
BLE AT SUCH HEARINGS.
  THE COURT MAY CONSIDER ANY FACT OR CIRCUMSTANCES RELEVANT TO THE IMPO-
SITION  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-SEN-
TENCE  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 DISCI-
PLINARY 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 IS NOT ELIGIBLE FOR
RESENTENCING 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 NOTI-
FY  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

A. 4314--A                          6

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.
  S 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
amended  by section 10 of part AAA of chapter 56 of the laws of 2009, is
amended to read as follows:
  1. Provided that a certificate granting  leave  to  appeal  is  issued
pursuant  to section 460.20, an appeal may, except as provided in subdi-
vision two, be taken to the court of appeals by either the defendant  or
the  people from any adverse or partially adverse order of an intermedi-
ate appellate court entered upon an appeal taken  to  such  intermediate
appellate  court  pursuant to section 450.10, 450.15, or 450.20, or from
an order granting or denying a motion to set aside an order of an inter-
mediate appellate court on  the  ground  of  ineffective  assistance  or
wrongful deprivation of appellate counsel, or by either the defendant or
the  people from any adverse or partially adverse order of an intermedi-
ate appellate court entered upon an appeal taken  to  such  intermediate
appellate  court  from  an  order  entered pursuant to section 440.46 OR
SECTION 440.47 of this chapter. An order of  an  intermediate  appellate
court  is  adverse to the party who was the appellant in such court when
it affirms the judgment, sentence or order appealed from, and is adverse
to the party who was the respondent in such court when it  reverses  the
judgment,  sentence  or  order  appealed  from. An appellate court order
which modifies a judgment or order appealed from is partially adverse to
each party.
  S 5. Paragraph (a) of subdivision 2 of section 390.50 of the  criminal
procedure  law,  as amended by section 5 of part OO of chapter 56 of the
laws of 2010, is amended to read as follows:
  (a) Not less than one court day prior to sentencing, unless such  time
requirement  is  waived by the parties, the pre-sentence report or memo-
randum shall be made available by the  court  for  examination  and  for
copying by the defendant's attorney, the defendant himself, if he has no
attorney,  and  the  prosecutor. In its discretion, the court may except
from disclosure a part or parts of the report or memoranda which are not
relevant to a proper sentence, or a diagnostic opinion which might seri-
ously disrupt a program of rehabilitation,  or  sources  of  information
which  have  been obtained on a promise of confidentiality, or any other
portion thereof, disclosure of which would not be  in  the  interest  of
justice.  In  all cases where a part or parts of the report or memoranda
are not disclosed, the court shall state for the record that a  part  or
parts  of the report or memoranda have been excepted and the reasons for
its action. The action of the court excepting information  from  disclo-

A. 4314--A                          7

sure shall be subject to appellate review. The pre-sentence report shall
be made available by the court for examination and copying in connection
with any appeal in the case, including an appeal under this subdivision.
Upon  written  request,  the  court shall make a copy of the presentence
report, other than a part or parts of the report redacted by  the  court
pursuant  to  this  paragraph, available to the defendant for use before
the parole board for release consideration or  an  appeal  of  a  parole
board  determination  OR  AN  APPLICATION  FOR  RESENTENCING PURSUANT TO
SECTION 440.46 OR 440.47 OF THIS CHAPTER. In his or her written  request
to  the  court  the defendant shall affirm that he or she anticipates an
appearance before the parole board or intends to file an  administrative
appeal of a parole board determination OR MEETS THE ELIGIBILITY CRITERIA
FOR  AND INTENDS TO FILE A MOTION FOR RESENTENCING PURSUANT TO 440.46 OF
THIS CHAPTER OR HAS RECEIVED NOTIFICATION FROM THE COURT WHICH  RECEIVED
HIS  OR HER REQUEST TO APPLY FOR RESENTENCING PURSUANT TO SECTION 440.47
OF THIS CHAPTER CONFIRMING THAT HE OR  SHE  IS  ELIGIBLE  TO  SUBMIT  AN
APPLICATION FOR RESENTENCING PURSUANT TO SECTION 440.47 OF THIS CHAPTER.
The court shall respond to the defendant's written request within twenty
days from receipt of the defendant's written request.
  S 6. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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

                                 4314--B

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2013
                               ___________

Introduced  by  M.  of  A.  AUBRY, CLARK, PERRY, LIFTON, PEOPLES-STOKES,
  BOYLAND, TITONE, PAULIN,  BRONSON,  STEVENSON,  ZEBROWSKI,  O'DONNELL,
  PRETLOW,  JAFFEE,  CRESPO,  SCHIMEL, MAGNARELLI, MOSLEY -- Multi-Spon-
  sored by -- M. of A.  ARROYO, BRENNAN, FAHY, GLICK,  GOODELL,  HOOPER,
  LENTOL,  MARKEY,  ORTIZ,  RAIA, ROSENTHAL, SCARBOROUGH, TITUS, WALTER,
  WEISENBERG, WRIGHT -- read once and referred to the Committee on Codes
  -- committee discharged, bill amended, ordered  reprinted  as  amended
  and  recommitted to said committee -- again reported from said commit-
  tee with amendments, ordered reprinted as amended and  recommitted  to
  said committee

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to sentencing and resentencing in domestic violence cases

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  60.12 of the penal law, as added by chapter 1 of
the laws of 1998, is amended to read as follows:
S 60.12 Authorized disposition; alternative [indeterminate] sentence [of
          imprisonment]; domestic violence cases.
  1. Notwithstanding any other provision of law, where a court is impos-
ing sentence UPON A PERSON pursuant to  section  70.00,  70.02  [upon  a
conviction for an offense enumerated in subdivision one of such section]
OR  70.06  OF  THIS TITLE, other than FOR an offense defined in [article
one hundred thirty of this chapter] SECTION 125.26, 125.27,  SUBDIVISION
FIVE  OF  SECTION  125.25,  OR  ARTICLE  490  OF THIS CHAPTER, OR FOR AN
OFFENSE WHICH WOULD REQUIRE SUCH PERSON TO REGISTER AS  A  SEX  OFFENDER
PURSUANT  TO ARTICLE 6-C OF THE CORRECTION LAW, AN ATTEMPT OR CONSPIRACY
TO COMMIT ANY SUCH OFFENSE and is authorized  or  required  pursuant  to
[such  section] SECTIONS 70.00, 70.02 OR 70.06 to impose a [determinate]
sentence of imprisonment [for such offense], the court, upon a  determi-
nation  following a hearing that (a) AT THE TIME OF THE INSTANT OFFENSE,
the defendant was [the] A  victim  of  DOMESTIC  VIOLENCE  SUBJECTED  TO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06253-05-3
              

A. 4314--B                          2

SUBSTANTIAL  physical,  sexual  or psychological abuse [by the victim or
intended victim of such offense,] INFLICTED BY  A  MEMBER  OF  THE  SAME
FAMILY OR HOUSEHOLD AS THE DEFENDANT AS SUCH TERM IS DEFINED IN SUBDIVI-
SION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW; (b) such abuse
was  a  SIGNIFICANT  CONTRIBUTING  factor  [in  causing the defendant to
commit such offense and]  TO THE DEFENDANT'S CRIMINAL BEHAVIOR; (c) [the
victim or intended victim of such offense was a member of the same fami-
ly or household as the defendant as such term is defined in  subdivision
one  of  section  530.11  of the criminal procedure law, may, in lieu of
imposing such determinate sentence of imprisonment, impose an indetermi-
nate sentence of imprisonment in accordance with  subdivisions  two  and
three of this section.] HAVING REGARD TO THE NATURE AND CIRCUMSTANCES OF
THE  CRIME AND TO THE HISTORY, CHARACTER AND CONDITION OF THE DEFENDANT,
THAT A SENTENCE OF IMPRISONMENT PURSUANT  TO  SECTION  70.00,  70.02  OR
70.06  OF THIS TITLE WOULD BE UNDULY HARSH MAY INSTEAD IMPOSE A SENTENCE
IN ACCORDANCE WITH SUBDIVISION TWO, THREE, FOUR, FIVE, SIX OR  SEVEN  OF
THIS SECTION.
  A  COURT  MAY  DETERMINE  THAT  SUCH  ABUSE  CONSTITUTES A SIGNIFICANT
CONTRIBUTING FACTOR  PURSUANT  TO  PARAGRAPH  (B)  OF  THIS  SUBDIVISION
REGARDLESS OF WHETHER THE DEFENDANT RAISED A DEFENSE PURSUANT TO ARTICLE
THIRTY-FIVE, ARTICLE FORTY, OR SUBDIVISION ONE OF SECTION 125.25 OF THIS
CHAPTER.
  AT  THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE SENTENCED
PURSUANT TO THIS SECTION, THE COURT  SHALL  CONSIDER  ORAL  AND  WRITTEN
ARGUMENTS,  TAKE  TESTIMONY  FROM WITNESSES OFFERED BY EITHER PARTY, AND
CONSIDER RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMINATION.  RELI-
ABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS.
  2.  [The maximum term of an indeterminate sentence imposed pursuant to
subdivision one of this section must be fixed by the court as  follows:]
WHERE  A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE PURSUANT
TO SECTION 70.02 OF THIS TITLE, THE COURT MAY IMPOSE A DEFINITE SENTENCE
OF IMPRISONMENT OF ONE YEAR OR LESS, OR PROBATION IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 65.00 OF THIS TITLE, OR MAY FIX A TERM  OF  IMPRI-
SONMENT AS FOLLOWS:
  (a)  For  a  class B felony, the term must be at least [six years] ONE
YEAR and must not exceed [twenty-five] FIVE years;
  (b) For a class C felony, the term must be at least [four and one-half
years] ONE YEAR and must not exceed [fifteen] THREE AND ONE-HALF years;
  (c) For a class D felony, the term must be at least [three years]  ONE
YEAR and must not exceed [seven] TWO years; and
  (d)  For a class E felony, the term must be [at least three years] ONE
YEAR and must not exceed [four] ONE AND ONE-HALF years.
  3. [The minimum period of imprisonment under an indeterminate sentence
imposed pursuant to subdivision one of this section must be fixed by the
court at one-half of the maximum term imposed and must be  specified  in
the  sentence]  WHERE  A  COURT  WOULD OTHERWISE BE REQUIRED TO IMPOSE A
SENTENCE FOR A CLASS A FELONY OFFENSE PURSUANT TO SECTION 70.00 OF  THIS
TITLE OR TO SUBDIVISION TWO OR THREE OF SECTION 70.71 OF THIS TITLE, THE
COURT  MAY  FIX A TERM OF IMPRISONMENT OF AT LEAST FIVE YEARS AND NOT TO
EXCEED FIFTEEN YEARS.
  4. WHERE A COURT WOULD OTHERWISE BE  REQUIRED  TO  IMPOSE  A  SENTENCE
PURSUANT  TO  SUBDIVISION  SIX OF SECTION 70.06 OF THIS TITLE, THE COURT
MAY FIX A TERM OF IMPRISONMENT AS FOLLOWS:
  (A) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST  THREE  YEARS  AND
MUST NOT EXCEED EIGHT YEARS;

A. 4314--B                          3

  (B)  FOR  A CLASS C FELONY, THE TERM MUST BE AT LEAST TWO AND ONE-HALF
YEARS AND MUST NOT EXCEED FIVE YEARS;
  (C) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST TWO YEARS AND MUST
NOT EXCEED THREE YEARS;
  (D)  FOR  A CLASS E FELONY, THE TERM MUST BE AT LEAST ONE AND ONE-HALF
YEARS AND MUST NOT EXCEED TWO YEARS.
  5. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
A  CLASS  B,  C, D OR E FELONY OFFENSE PURSUANT TO SECTION 70.00 OF THIS
TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE WITH THE PROVISIONS
OF SUBDIVISION TWO OF SECTION 70.70 OF THIS TITLE.
  6. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS  SECTION,  WHERE  A
COURT  WOULD  OTHERWISE  BE  REQUIRED  TO  IMPOSE A SENTENCE PURSUANT TO
SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, THE COURT MAY IMPOSE A
SENTENCE IN ACCORDANCE WITH  THE  PROVISIONS  OF  SUBDIVISION  THREE  OF
SECTION 70.70 OF THIS TITLE.
  7.  WHERE  A  COURT  WOULD  OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE
PURSUANT TO SUBDIVISION THREE OF SECTION 70.06 OF THIS TITLE, WHERE  THE
PRIOR  FELONY  CONVICTION  WAS  FOR  A FELONY OFFENSE DEFINED IN SECTION
70.02 OF THIS TITLE, THE COURT MAY IMPOSE A SENTENCE IN ACCORDANCE  WITH
THE PROVISIONS OF SUBDIVISION FOUR OF SECTION 70.70 OF THIS TITLE.
  S  2.  Paragraphs  (a), (b), (c), (d), (e) and (f) of subdivision 2 of
section 70.45 of the penal law, as amended by chapter 7 of the  laws  of
2007, are amended to read as follows:
  (a)  such  period shall be one year whenever a determinate sentence of
imprisonment is imposed pursuant to subdivision two of section 70.70  of
this  article  OR SUBDIVISION FIVE OF SECTION 60.12 OF THIS TITLE upon a
conviction of a class D or class E felony offense;
  (b) such period shall be not less than one  year  nor  more  than  two
years  whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision two of section 70.70 of this article  OR  SUBDIVISION
FIVE  OF  SECTION  60.12 OF THIS TITLE upon a conviction of a class B or
class C felony offense;
  (c) such period shall be not less than one  year  nor  more  than  two
years  whenever a determinate sentence of imprisonment is imposed pursu-
ant to subdivision three or four of section 70.70  of  this  article  OR
SUBDIVISION  SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE upon conviction
of a class D or class E felony offense;
  (d) such period shall be not less than one and one-half years nor more
than three years whenever a  determinate  sentence  of  imprisonment  is
imposed  pursuant  to subdivision three or four of section 70.70 of this
article OR SUBDIVISION SIX OR SEVEN OF SECTION 60.12 OF THIS TITLE  upon
conviction of a class B felony or class C felony offense;
  (e) such period shall be not less than one and one-half years nor more
than  three  years  whenever  a  determinate sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of  this  article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class D or class E violent felony offense;
  (f) such period shall be not less than two and one-half years nor more
than  five  years  whenever  a  determinate  sentence of imprisonment is
imposed pursuant to subdivision three of section 70.02 of  this  article
OR SUBDIVISION TWO OF SECTION 60.12 OF THIS TITLE upon a conviction of a
class B or class C violent felony offense.
  S  3.  The  criminal  procedure law is amended by adding a new section
440.47 to read as follows:
S 440.47 MOTION FOR RESENTENCE; DOMESTIC VIOLENCE CASES.

A. 4314--B                          4

  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 SUCH
EFFECTIVE  DATE  AND  ELIGIBLE  FOR  AN ALTERNATIVE SENTENCE PURSUANT TO
SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER THE  EFFECTIVE  DATE  OF
THIS  SECTION,  SUBMIT  TO THE JUDGE OR JUSTICE WHO IMPOSED THE ORIGINAL
SENTENCE UPON SUCH PERSON A REQUEST TO APPLY FOR RESENTENCING IN ACCORD-
ANCE 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  SUBDIVISION  ONE  OF  THIS
SECTION, 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 DOMES-
TIC 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.

A. 4314--B                          5

  AT LEAST ONE PIECE OF EVIDENCE MUST BE EITHER A COURT RECORD, PRE-SEN-
TENCE  REPORT,  SOCIAL SERVICES RECORD, HOSPITAL RECORD, SWORN STATEMENT
FROM A WITNESS TO THE DOMESTIC VIOLENCE, LAW ENFORCEMENT RECORD,  DOMES-
TIC  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  VERIFI-
CATION  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 ADMISSI-
BLE AT SUCH HEARINGS.
  THE COURT MAY CONSIDER ANY FACT OR CIRCUMSTANCES RELEVANT TO THE IMPO-
SITION 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-SEN-
TENCE 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 DISCI-
PLINARY  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  IS  NOT  ELIGIBLE  FOR
RESENTENCING  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 NOTI-
FY 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

A. 4314--B                          6

(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.
  S 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
amended by section 10 of part AAA of chapter 56 of the laws of 2009,  is
amended to read as follows:
  1.  Provided  that  a  certificate  granting leave to appeal is issued
pursuant to section 460.20, an appeal may, except as provided in  subdi-
vision  two, be taken to the court of appeals by either the defendant or
the people from any adverse or partially adverse order of an  intermedi-
ate  appellate  court  entered upon an appeal taken to such intermediate
appellate court pursuant to section 450.10, 450.15, or 450.20,  or  from
an order granting or denying a motion to set aside an order of an inter-
mediate  appellate  court  on  the  ground  of ineffective assistance or
wrongful deprivation of appellate counsel, or by either the defendant or
the people from any adverse or partially adverse order of an  intermedi-
ate  appellate  court  entered upon an appeal taken to such intermediate
appellate court from an order entered  pursuant  to  section  440.46  OR
SECTION  440.47  of  this chapter. An order of an intermediate appellate
court is adverse to the party who was the appellant in such  court  when
it affirms the judgment, sentence or order appealed from, and is adverse
to  the  party who was the respondent in such court when it reverses the
judgment, sentence or order appealed  from.  An  appellate  court  order
which modifies a judgment or order appealed from is partially adverse to
each party.
  S  5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
procedure law, as amended by section 5 of part OO of chapter 56  of  the
laws of 2010, is amended to read as follows:
  (a)  Not less than one court day prior to sentencing, unless such time
requirement is waived by the parties, the pre-sentence report  or  memo-
randum  shall  be  made  available  by the court for examination and for
copying by the defendant's attorney, the defendant himself, if he has no
attorney, and the prosecutor. In its discretion, the  court  may  except
from disclosure a part or parts of the report or memoranda which are not
relevant to a proper sentence, or a diagnostic opinion which might seri-
ously  disrupt  a  program  of rehabilitation, or sources of information
which have been obtained on a promise of confidentiality, or  any  other
portion  thereof,  disclosure  of  which would not be in the interest of

A. 4314--B                          7

justice. In all cases where a part or parts of the report  or  memoranda
are  not  disclosed, the court shall state for the record that a part or
parts of the report or memoranda have been excepted and the reasons  for
its  action.  The action of the court excepting information from disclo-
sure shall be subject to appellate review. The pre-sentence report shall
be made available by the court for examination and copying in connection
with any appeal in the case, including an appeal under this subdivision.
Upon written request, the court shall make a  copy  of  the  presentence
report,  other  than a part or parts of the report redacted by the court
pursuant to this paragraph, available to the defendant  for  use  before
the  parole  board  for  release  consideration or an appeal of a parole
board determination OR  AN  APPLICATION  FOR  RESENTENCING  PURSUANT  TO
SECTION  440.46 OR 440.47 OF THIS CHAPTER. In his or her written request
to the court the defendant shall affirm that he or  she  anticipates  an
appearance  before the parole board or intends to file an administrative
appeal of a parole board determination OR MEETS THE ELIGIBILITY CRITERIA
FOR AND INTENDS TO FILE A MOTION FOR RESENTENCING PURSUANT TO 440.46  OF
THIS  CHAPTER OR HAS RECEIVED NOTIFICATION FROM THE COURT WHICH RECEIVED
HIS OR HER REQUEST TO APPLY FOR RESENTENCING PURSUANT TO SECTION  440.47
OF  THIS  CHAPTER  CONFIRMING  THAT  HE  OR SHE IS ELIGIBLE TO SUBMIT AN
APPLICATION FOR RESENTENCING PURSUANT TO SECTION 440.47 OF THIS CHAPTER.
The court shall respond to the defendant's written request within twenty
days from receipt of the defendant's written request.
  S 6. This act shall take effect on the one hundred eightieth day after
it shall have become a law.