S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4423
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 4, 2021
                                ___________
 
 Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
   Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation  to  authorizing
   courts to reduce or modify sentences for certain individuals when such
   sentence is deemed excessive
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 440.20 of the criminal procedure law is amended  by
 adding a new subdivision 5 to read as follows:
   5. (A) UPON MOTION OF AN ELIGIBLE INDIVIDUAL, THE COURT IN WHICH JUDG-
 MENT  WAS  ENTERED  MAY REDUCE OR MODIFY THE SENTENCE ON THE GROUND THAT
 SUCH SENTENCE IS GREATER THAN  NECESSARY  TO  ACHIEVE  THE  PURPOSES  OF
 SENTENCING.  SUBDIVISION TWO OF THIS SECTION SHALL NOT APPLY TO A MOTION
 BROUGHT UNDER THIS SUBDIVISION.
   (B) AN INDIVIDUAL SHALL BE ELIGIBLE FOR RELIEF UNDER THIS  SUBDIVISION
 WHEN HE OR SHE:
   (I)  HAS  BEEN  CONVICTED,  EITHER  BY  PLEA  OR  VERDICT, OF A FELONY
 OFFENSE; OR
   (II) HAS APPEALED A JUDGMENT OR SENTENCE THAT IS THE SUBJECT OF RELIEF
 PURSUANT  TO  THIS  SECTION.  NOTHING  IN  THIS  SUBPARAGRAPH  SHALL  BE
 CONSTRUED  TO  REQUIRE  THAT  THE DEFENDANT HAS TAKEN A DIRECT APPEAL IN
 ORDER TO BE ELIGIBLE FOR RELIEF PURSUANT TO THIS SECTION.
   (C) NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (B) OF  THIS  SUBDIVI-
 SION,  AN  OTHERWISE INELIGIBLE INDIVIDUAL SHALL BE DEEMED ELIGIBLE UPON
 CONSENT OF THE DISTRICT ATTORNEY.
   (D) AN INDIVIDUAL WHO IS SERVING THE MINIMUM SENTENCE PERMITTED  UNDER
 THE PENAL LAW SHALL NOT BE ELIGIBLE UNDER THIS SUBDIVISION.
   (E)  A  MOTION  BROUGHT PURSUANT TO THIS SUBDIVISION SHALL BE REFERRED
 FOR DETERMINATION TO THE JUDGE  OR  JUSTICE  WHO  IMPOSED  THE  ORIGINAL
 SENTENCE  UPON  SUCH INDIVIDUAL. IF, AT THE TIME OF THE APPLICATION, THE
 ORIGINAL SENTENCING JUDGE OR JUSTICE IS NO LONGER A JUDGE OR JUSTICE  OF
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08918-01-1

 A. 4423                             2
 
 A  COURT  OF  COMPETENT  JURISDICTION,  THEN  THE  APPLICATION  SHALL BE
 ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE COURT BY THE  ADMINISTRATIVE
 JUDGE OF THE APPLICABLE COURT.
   (F) IN DECIDING THE MOTION, THE COURT SHALL CONSIDER THE PRINCIPLES OF
 REHABILITATION,  PUNISHMENT  AND  DETERRENCE,  THE REHABILITATION DEMON-
 STRATED BY THE DEFENDANT, AND THE PROMOTION OF THE INDIVIDUAL'S SUCCESS-
 FUL REENTRY AND REINTEGRATION INTO SOCIETY, AS WELL  AS  PUBLIC  SAFETY.
 THE  COURT MAY CONSIDER ANY FACTS OR CIRCUMSTANCES RELEVANT TO THE IMPO-
 SITION OF A NEW SENTENCE THAT ARE SUBMITTED BY SUCH  INDIVIDUAL  OR  THE
 DISTRICT ATTORNEY, INCLUDING, BUT NOT LIMITED TO:
   (I)  AGE,  PERSONAL  CIRCUMSTANCES,  AND  MEDICAL CONDITION, INCLUDING
 CONDITIONS THAT EXISTED AT THE TIME OF THE ORIGINAL SENTENCING;
   (II) THE DEFENDANT'S INSTITUTIONAL RECORD OF CONFINEMENT;
   (III) WHETHER THE INDIVIDUAL HAS AVAILED HIMSELF OR HERSELF OF  EDUCA-
 TIONAL, THERAPEUTIC, AND VOCATIONAL OPPORTUNITIES WHILE IMPRISONED; AND
   (IV)  ANY  STATISTICAL EVIDENCE DEMONSTRATING EXCESSIVENESS IN COMPAR-
 ISON TO OTHER SENTENCES OF INDIVIDUALS FOR THE SAME CRIME.
   (G) THE COURT SHALL NOT ORDER A  NEW  PRE-SENTENCE  INVESTIGATION  AND
 REPORT.  THE  COURT SHALL OFFER THE DEFENDANT AN OPPORTUNITY FOR A HEAR-
 ING. IF THE COURT FINDS THAT THE SENTENCE IS GREATER THAN  NECESSARY  TO
 ACHIEVE THE PURPOSES OF SENTENCING, THE COURT SHALL GRANT THE MOTION AND
 ENTER  AN  ORDER MODIFYING THE SENTENCE TO ANY LESSER AUTHORIZED TERM OF
 IMPRISONMENT. THE ORDER MAY  ALSO  DIRECT  THAT  THE  NEW  SENTENCE  RUN
 CONCURRENTLY  WITH  ANY  OTHER  TERM OF IMPRISONMENT BEING SERVED BY THE
 INDIVIDUAL. THE COURT SHALL PLACE ITS REASONS ON THE RECORD FOR  MODIFI-
 CATION OF THE SENTENCE, OR DENIAL OF MODIFICATION.
   (H) IN THE EVENT THAT AN INDIVIDUAL IS DENIED RELIEF UNDER THIS SUBDI-
 VISION, OR IN THE EVENT THAT THE INDIVIDUAL IS DENIED THE FULL REDUCTION
 SOUGHT,  HE  OR SHE MAY BRING A NEW MOTION AT ANY TIME AFTER THREE YEARS
 FROM THE DATE OF DENIAL OF THE PREVIOUS MOTION.
   (I) AN APPEAL TO AN INTERMEDIATE APPELLATE COURT MAY BE  TAKEN  AS  OF
 RIGHT FROM AN ORDER DENYING A MOTION MADE PURSUANT TO THIS SUBDIVISION.
   (J)  NO  DEFENDANT SHALL BE REQUIRED OR PERMITTED TO WAIVE ELIGIBILITY
 FOR RELIEF PURSUANT TO THIS  SECTION  AS  PART  OF  A  PLEA  OF  GUILTY,
 SENTENCE  OR ANY AGREEMENT RELATED TO A CONVICTION FOR A FELONY OFFENSE,
 AND ANY SUCH WAIVER SHALL BE DEEMED VOID AND WHOLLY UNENFORCEABLE.
   (K) AN ORDER MODIFYING THE SENTENCE PURSUANT TO THIS SECTION SHALL NOT
 AFFECT THE VALIDITY OR STATUS OF THE UNDERLYING CONVICTION.
   (L) SUBDIVISION ONE OF SECTION SEVEN HUNDRED SEVENTEEN AND SUBDIVISION
 FOUR OF SECTION SEVEN HUNDRED TWENTY-TWO OF  THE  COUNTY  LAW,  AND  THE
 RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW, SHALL APPLY TO THE
 PREPARATION  OF  AND PROCEEDINGS ON MOTIONS PURSUANT TO THIS SECTION, AS
 WELL AS TO ANY APPEALS TAKEN PURSUANT TO THIS SUBDIVISION.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law and shall apply to offenses committed before, on or
 after the date this act shall have become a law.