S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3974
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 31, 2019
                                ___________
 
 Introduced  by M. of A. AUBRY -- 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:
 § 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,]
 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

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

                                                            LBD00863-01-9

 A. 3974                             2

 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
 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 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
 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

 A. 3974                             3
 
 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.
   § 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-
 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

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 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.
   § 3. The criminal procedure law is amended by  adding  a  new  section
 440.47 to read as follows:
 § 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.
   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

 A. 3974                             5
 
 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.
   (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.

 A. 3974                             6
 
   (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.
   § 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.
   §  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. 3974                             7
 
   (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.
   §  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.