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

                                  4409

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2015
                               ___________

Introduced  by  M.  of  A.  AUBRY, CLARK, PERRY, LIFTON, PEOPLES-STOKES,
  TITONE, PAULIN, BRONSON, ZEBROWSKI, O'DONNELL, PRETLOW, JAFFEE,  CRES-
  PO,  SCHIMEL, MAGNARELLI, MOSLEY, ROZIC, BARRETT, ROBINSON, GOTTFRIED,
  COOK, SIMOTAS, HEVESI -- Multi-Sponsored by -- M. of A. ARROYO,  BREN-
  NAN,  DUPREY, FAHY, GLICK, GOODELL, HOOPER, LENTOL, LUPINACCI, MARKEY,
  ORTIZ, RAIA, RODRIGUEZ, ROSENTHAL, SCARBOROUGH, TITUS, WALTER,  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], 70.06 OR SUBDIVISION TWO OR THREE OF  SECTION  70.71  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
SIX-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, 70.06 OR SUBDIVISION  TWO  OR  THREE  OF  SECTION
70.71  OF  THIS TITLE to impose a [determinate] sentence of imprisonment
[for such offense], the court, upon a determination 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,]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07697-01-5
              

A. 4409                             2

INFLICTED  BY  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;  (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 defend-
ant  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 imprison-
ment in accordance with subdivisions two and  three  of  this  section.]
HAVING  REGARD  FOR  THE  NATURE  AND CIRCUMSTANCES OF THE CRIME AND 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, AS
APPLICABLE.
  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 DETERMINATE TERM
OF IMPRISONMENT 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,  THE COURT MAY FIX A DETERMINATE 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  FOR
A  CLASS  A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (B)
OF SUBDIVISION TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY  FIX  A
DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT  LEAST FIVE YEARS AND NOT TO
EXCEED EIGHT YEARS.
  5. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
A  CLASS  A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (B)
OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A

A. 4409                             3

DETERMINATE TERM OF IMPRISONMENT OF AT  LEAST  FIVE  YEARS  AND  NOT  TO
EXCEED TWELVE YEARS.
  6.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH  (B)
OF  SUBDIVISION  TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
DETERMINATE TERM OF IMPRISONMENT OF AT LEAST ONE YEAR AND NOT TO  EXCEED
THREE YEARS.
  7.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH  (B)
OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT LEAST THREE YEARS AND NOT TO
EXCEED SIX YEARS.
  8. 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;
  (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.
  9.  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.
  10.  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.
  11. 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

A. 4409                             4

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
TERM OF EIGHT YEARS OR MORE FOR AN OFFENSE COMMITTED PRIOR TO THE EFFEC-
TIVE  DATE  OF  THIS  SECTION  AND  ELIGIBLE FOR AN ALTERNATIVE SENTENCE
PURSUANT TO SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER SUCH  EFFEC-
TIVE  DATE,  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  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.

A. 4409                             5

  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
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.

A. 4409                             6

  (F)  IF  THE  COURT DETERMINES THAT THE APPLICANT SHOULD NOT BE RESEN-
TENCED 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
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

A. 4409                             7

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-
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 immediately; provided,  however,  that
sections  one  and two of this act shall apply to offenses committed on,
after and prior to such effective  date  where  the  sentence  for  such
offense has not yet been imposed; provided, further that sections three,
four  and  five of this act shall take effect on the ninetieth day after
it shall have become a law.

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

                                 4409--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2015
                               ___________

Introduced  by  M.  of  A. AUBRY, PERRY, LIFTON, PEOPLES-STOKES, TITONE,
  PAULIN, BRONSON, ZEBROWSKI, O'DONNELL, PRETLOW, JAFFEE, CRESPO,  SCHI-
  MEL, MAGNARELLI, MOSLEY, ROZIC, BARRETT, ROBINSON, GOTTFRIED, SIMOTAS,
  HEVESI,  WRIGHT,  BLAKE,  ARROYO,  ORTIZ, QUART, COOK, HOOPER, CAHILL,
  LINARES, PICHARDO, RICHARDSON -- Multi-Sponsored by -- M. of A.  BREN-
  NAN,  DUPREY,  FAHY, GALEF, GLICK, GOODELL, HIKIND, LENTOL, LUPINACCI,
  MAGEE, MARKEY, MURRAY, PALMESANO, RAIA, RODRIGUEZ,  ROSENTHAL,  SIMON,
  SOLAGES,  THIELE,  TITUS,  WALTER  --  read  once  and referred to the
  Committee on Codes -- recommitted to the Committee on Codes in accord-
  ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

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],  70.06  OR  SUBDIVISION  TWO OR THREE OF SECTION 70.71 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
SIX-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,  70.06  OR  SUBDIVISION TWO OR THREE OF SECTION

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07697-04-6
              

A. 4409--A                          2

70.71 OF THIS TITLE to impose a [determinate] sentence  of  imprisonment
[for  such offense], the court, upon a determination 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
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 defend-
ant  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 imprison-
ment in accordance with subdivisions two and  three  of  this  section.]
HAVING  REGARD  FOR  THE  NATURE  AND CIRCUMSTANCES OF THE CRIME AND 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, AS
APPLICABLE.
  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 DETERMINATE TERM
OF IMPRISONMENT 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,  THE COURT MAY FIX A DETERMINATE 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  FOR
A  CLASS  A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (B)
OF SUBDIVISION TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY  FIX  A

A. 4409--A                          3

DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT  LEAST FIVE YEARS AND NOT TO
EXCEED EIGHT YEARS.
  5.  WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE FOR
A CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (I) OF  PARAGRAPH  (B)
OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
DETERMINATE  TERM  OF  IMPRISONMENT  OF  AT  LEAST FIVE YEARS AND NOT TO
EXCEED TWELVE YEARS.
  6. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
A  CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (B)
OF SUBDIVISION TWO OF SECTION 70.71 OF THIS TITLE, THE COURT MAY  FIX  A
DETERMINATE  TERM OF IMPRISONMENT OF AT LEAST ONE YEAR AND NOT TO EXCEED
THREE YEARS.
  7. WHERE A COURT WOULD OTHERWISE BE REQUIRED TO IMPOSE A SENTENCE  FOR
A  CLASS A FELONY OFFENSE PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (B)
OF SUBDIVISION THREE OF SECTION 70.71 OF THIS TITLE, THE COURT MAY FIX A
DETERMINATE TERM OF IMPRISONMENT OF AT LEAST  THREE  YEARS  AND  NOT  TO
EXCEED SIX YEARS.
  8.  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;
  (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.
  9. 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.
  10. 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.
  11.  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 NINE 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
NINE  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-

A. 4409--A                          4

ant to subdivision three or four of section 70.70 of this  article  upon
conviction  of a class D or class E felony offense OR SUBDIVISION TEN OF
SECTION 60.12 OF THIS TITLE;
  (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 upon conviction of a class B felony or class C felony offense[;]
OR SUBDIVISION ELEVEN OF SECTION 60.12 OF THIS TITLE;
  (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  OR  EIGHT  OF  SECTION  60.12 OF THIS TITLE upon a
conviction of a class D or class E violent felony offense OR SUBDIVISION
FOUR, FIVE, SIX, OR SEVEN OF SECTION 60.12 OF THIS TITLE;
  (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 OR EIGHT 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
TERM OF EIGHT YEARS OR MORE FOR AN OFFENSE COMMITTED PRIOR TO THE EFFEC-
TIVE  DATE  OF  THIS  SECTION  AND  ELIGIBLE FOR AN ALTERNATIVE SENTENCE
PURSUANT TO SECTION 60.12 OF THE PENAL LAW MAY, ON OR AFTER SUCH  EFFEC-
TIVE  DATE,  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  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

A. 4409--A                          5

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
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

A. 4409--A                          6

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 SHOULD NOT BE RESEN-
TENCED 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
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

A. 4409--A                          7

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-
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 immediately; provided,  however,  that
sections  one  and two of this act shall apply to offenses committed on,
after and prior to such effective  date  where  the  sentence  for  such
offense has not yet been imposed; provided, further that sections three,
four  and  five of this act shall take effect on the ninetieth day after
it shall have become a law.