S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8894
 
                           I N  A S S E M B L Y
 
                             January 19, 2022
                                ___________
 
 Introduced by M. of A. WALKER -- read once and referred to the Committee
   on Codes
 
 AN  ACT  to amend the criminal procedure law, in relation to authorizing
   certain persons confined in institutions operated by the department of
   corrections  and  community  supervision  to  apply  for  a   sentence
   reduction
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  The criminal procedure law is  amended  by  adding  a  new
 section 440.45 to read as follows:
 § 440.45 APPLICATION FOR SENTENCE REDUCTION.
   1. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, INCLUDING ANY MINI-
 MUM SENTENCE REQUIREMENT, ANY PERSON CONFINED IN AN INSTITUTION OPERATED
 BY  THE  DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY SUPERVISION WHO HAS
 SERVED TEN YEARS OF THEIR SENTENCE, OR ONE-HALF OF THE MINIMUM  TERM  OF
 AN  INDETERMINATE  SENTENCE WHERE THE MINIMUM TERM EQUALS OR EXCEEDS TEN
 YEARS, OR ONE-HALF OF A DETERMINATE SENTENCE WHERE THE  SENTENCE  EQUALS
 OR  EXCEEDS  TEN  YEARS, WHICHEVER IS LESS, MAY APPLY FOR A REDUCTION OF
 THEIR SENTENCE PURSUANT TO THE  PROVISIONS  OF  THIS  STATUTE.  FOR  THE
 PURPOSES  OF  THIS  SUBDIVISION,  THE  TERM "SENTENCE" SHALL INCLUDE ANY
 AGGREGATE SENTENCE WHERE CONSECUTIVE SENTENCES ARE IMPOSED.
   (B) NOTWITHSTANDING PARAGRAPH (A) OF THIS  SUBDIVISION,  AN  OTHERWISE
 INELIGIBLE  PERSON  SHALL BE DEEMED ELIGIBLE TO APPLY FOR A REDUCTION IN
 SENTENCE UPON CONSENT OF  THE  PROSECUTOR  IN  THE  UNDERLYING  CRIMINAL
 ACTION IN WHICH THE SENTENCE WAS IMPOSED.
   (C)  NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, THE PROSECUTOR
 IN THE UNDERLYING CRIMINAL ACTION IN WHICH A SENTENCE  WAS  IMPOSED  MAY
 INITIATE  AN  APPLICATION FOR RESENTENCING ON BEHALF OF THE INCARCERATED
 PERSON AND UPON SUCH APPLICATION AN ATTORNEY SHALL BE ASSIGNED TO REPRE-
 SENT THE INCARCERATED PERSON IN PROCEEDINGS PURSUANT TO THIS SECTION.
   (D) NO WAIVER OF THE RIGHT TO  MAKE  AN  APPLICATION  FOR  A  SENTENCE
 REDUCTION  UNDER  THIS  SECTION  SHALL  BE  PERMITTED  OR HONORED BY THE
 SENTENCING COURT. ANY SUCH WAIVER SHALL BE DEEMED VOID  AND  UNENFORCEA-
 BLE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13368-04-1
 A. 8894                             2
 
   (E)  NO  LESS  THAN  THIRTY  DAYS  BEFORE THE DATE ON WHICH THE PERSON
 BECOMES ELIGIBLE PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION TO  APPLY
 FOR  A  SENTENCE  REDUCTION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY
 SUPERVISION SHALL  PROVIDE  WRITTEN  NOTICE  OF  THIS  SECTION  AND  ITS
 PROVISIONS TO:
   (I) THE DEFENDANT;
   (II) THE ATTORNEY OF RECORD;
   (III)  THE  ADMINISTRATOR OF THE COUNTY PANEL ESTABLISHED FOR PURPOSES
 OF THE ADMINISTRATION OF ARTICLE EIGHTEEN-B OF THE COUNTY  LAW  AND  ALL
 INSTITUTIONAL  OFFICES THAT PROVIDE CRIMINAL DEFENSE SERVICES WITHIN THE
 COUNTY IN WHICH THE SENTENCE WAS IMPOSED;
   (IV) PRISONERS' LEGAL SERVICES OF NEW YORK;
   (V) THE SENTENCING COURT;
   (VI) THE PROSECUTOR IN THE UNDERLYING CRIMINAL  ACTION  IN  WHICH  THE
 SENTENCE WAS IMPOSED; AND
   (VII)  THE  DISTRICT  ATTORNEY IN THE COUNTY IN WHICH THE SENTENCE WAS
 IMPOSED.
   (F) A PERSON WHO IS ELIGIBLE FOR A SENTENCE REDUCTION PURSUANT TO THIS
 SUBDIVISION 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  SEVEN-
 TEEN  AND  SUBDIVISION  FOUR  OF SECTION SEVEN HUNDRED TWENTY-TWO OF THE
 COUNTY LAW AND THE RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH  LAW
 FOR  THE  APPLICATION  AND ANY PROCEEDINGS UNDER THIS SECTION, INCLUDING
 ANY APPEAL AND SUCCESSIVE APPLICATION. THE COURT SHALL NOTIFY THE APPLI-
 CANT ABOUT THE APPOINTMENT OF COUNSEL.
   2. (A) AN APPLICATION FOR A  SENTENCE  REDUCTION  UNDER  THIS  SECTION
 SHALL BE FILED IN THE COUNTY IN WHICH THE SENTENCE WAS IMPOSED TO REDUCE
 THE  SENTENCE  OF THE APPLICANT PURSUANT TO THIS SECTION AND MAY INCLUDE
 AFFIDAVITS,  LETTERS,  DECLARATIONS,  RECORDS  FROM  THE  DEPARTMENT  OF
 CORRECTIONS  AND  COMMUNITY SUPERVISION, VIDEO SUBMISSIONS, OR ANY OTHER
 WRITTEN OR ELECTRONIC MATERIAL.
   (B) UPON  THE  COURT'S  RECEIPT  OF  AN  APPLICATION  FOR  A  SENTENCE
 REDUCTION,  THE  COURT  SHALL PROMPTLY NOTIFY THE APPROPRIATE PROSECUTOR
 AND PROVIDE SUCH PROSECUTOR WITH A COPY OF THE APPLICATION.
   (C) AN APPLICATION FILED PURSUANT TO THIS SECTION  SHALL  BE  RANDOMLY
 ASSIGNED  BY  THE ADMINISTRATIVE JUDGE DESIGNATED BY THE OFFICE OF COURT
 ADMINISTRATION WITH JURISDICTION OVER THE COUNTY WHERE  THE  APPLICATION
 IS  FILED  TO  ANY SUPERIOR COURT JUDGE WITH CRIMINAL JURISDICTION OTHER
 THAN THE JUDGE WHO FIRST SENTENCED THE APPLICANT UNLESS  THE  JUDGE  WHO
 FIRST SENTENCED THE APPLICANT IS THE ONLY JUDGE IN THAT COUNTY.
   (D)  AN APPLICATION FILED UNDER THIS SECTION MAY BE AMENDED OR SUPPLE-
 MENTED AS NECESSARY.
   (E) AFTER THE FILING OF AN APPLICATION TO REDUCE A SENTENCE UNDER THIS
 SECTION, THE COURT MAY DIRECT  THE  PARTIES  TO  EXPAND  THE  RECORD  BY
 SUBMITTING ADDITIONAL WRITTEN MATERIALS RELATING TO THE APPLICATION.
   (F)  (I)  THE COURT SHALL, UPON REQUEST OF THE APPLICANT OR THE PROSE-
 CUTING OFFICE, CONDUCT A HEARING ON THE APPLICATION, AT WHICH THE APPLI-
 CANT AND COUNSEL FOR THE APPLICANT SHALL BE GIVEN THE OPPORTUNITY TO  BE
 HEARD.  SUCH HEARING SHALL BE RECORDED OR TRANSCRIBED. THE APPLICANT HAS
 THE  RIGHT TO BE PRESENT AT ANY SUCH HEARING UNLESS THE APPLICANT WAIVES
 THE RIGHT TO BE PRESENT IN WRITING.
   (II) IN A HEARING PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH,  THE
 COURT SHALL ALLOW PARTIES TO PRESENT ANY EVIDENCE PERTINENT TO THE ISSUE
 OF  A  SENTENCE  REDUCTION  AND THE FACTORS OUTLINED IN PARAGRAPH (B) OF
 A. 8894                             3
 
 SUBDIVISION FOUR OF THIS SECTION. SUCH EVIDENCE MAY  INCLUDE  DOCUMENTS,
 LIVE  TESTIMONY,  TANGIBLE  OBJECTS,  OR  ANY OTHER CLASS OF EVIDENCE OR
 INFORMATION PERTINENT TO SENTENCING.  AT  SUCH  HEARING,  THE  APPLICANT
 SHALL  HAVE  THE  RIGHT  TO  MAKE  A  STATEMENT PERSONALLY, ON THEIR OWN
 BEHALF, IN THE SAME MANNER AS PROVIDED IN  SUBDIVISION  ONE  OF  SECTION
 380.50 OF THIS PART.
   3.  (A)  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF LAW, A COURT SHALL
 REDUCE A TERM OF IMPRISONMENT IMPOSED UPON A DEFENDANT IF:
   (I) THE APPLICANT IS ELIGIBLE PURSUANT  TO  SUBDIVISION  ONE  OF  THIS
 SECTION; AND
   (II)  THE  COURT  FINDS,  AFTER  CONSIDERING  THE FACTORS SET FORTH IN
 SUBDIVISION FOUR OF THIS SECTION, THAT THE INTERESTS OF JUSTICE  WARRANT
 A SENTENCE MODIFICATION.
   (B)  (I)  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN REDUCING AN
 APPLICANT'S SENTENCE UNDER THIS SECTION, THE COURT MAY ISSUE A  SENTENCE
 LESS  THAN THE MINIMUM TERM OTHERWISE REQUIRED BY ARTICLE SEVENTY OF THE
 PENAL LAW. OTHERWISE, THE APPLICABLE PROVISIONS IN  ARTICLE  SEVENTY  OF
 THE  PENAL  LAW  IN  EFFECT  AT THE TIME OF THE SENTENCE REDUCTION SHALL
 APPLY.
   (II) NOTWITHSTANDING ANY OTHER PROVISION  OF  LAW,  WHEN  REDUCING  AN
 APPLICANT'S  SENTENCE UNDER THIS SECTION, THE COURT MAY ISSUE A SENTENCE
 TO BE SERVED CONCURRENTLY TO ANY OTHER SENTENCE OF  IMPRISONMENT,  BEING
 SERVED BY THE APPLICANT.
   (III)  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW, WHEN REDUCING AN
 APPLICANT'S SENTENCE UNDER THIS SECTION,  THE  COURT  MAY  SENTENCE  THE
 APPLICANT  TO  A  LESS THAN MINIMUM TERM OF SUPERVISED RELEASE OTHERWISE
 REQUIRED BY LAW.
   (C) IN ORDERING A SENTENCE REDUCTION, THE COURT SHALL, UNLESS COUNTER-
 VAILING CONSIDERATIONS REQUIRE, REDUCE THE APPLICANT'S SENTENCE SO  THAT
 THE  APPLICANT  WILL BE ELIGIBLE FOR IMMEDIATE RELEASE FROM PRISON AFTER
 THE NECESSARY CALCULATIONS.
   (D) THE COURT MAY NOT INCREASE ANY APPLICANT'S SENTENCE,  AND  IF  THE
 ORIGINAL  JUDGMENT  WAS  THE  RESULT  OF  A PLEA AGREEMENT, RESENTENCING
 PURSUANT TO THIS SECTION SHALL NOT CONSTITUTE GROUNDS FOR  A  PROSECUTOR
 OR THE COURT TO WITHDRAW THEIR AGREEMENT TO THE ORIGINAL PLEA AGREEMENT.
   4.  (A)  THERE  SHALL BE A REBUTTABLE PRESUMPTION THAT THE APPLICANT'S
 SENTENCE SHALL BE REDUCED IN THE CASE OF:
   (I) AN APPLICANT WHO IS FIFTY-FIVE YEARS OF AGE OR OLDER ON  THE  DATE
 ON  WHICH  THE  APPLICANT  FILES AN APPLICATION FOR A SENTENCE REDUCTION
 PURSUANT TO SUBDIVISION ONE OF THIS SECTION; OR
   (II) AN APPLICANT WHO WAS TWENTY-FIVE YEARS OLD OR YOUNGER ON THE DATE
 ON WHICH THE APPLICANT COMMITTED THE OFFENSE OR OFFENSES FOR  WHICH  THE
 APPLICANT IS IMPRISONED.
   (B) THE COURT, IN DETERMINING WHETHER TO REDUCE A TERM OF IMPRISONMENT
 PURSUANT  TO  SUBDIVISION  THREE  OF  THIS  SECTION,  SHALL CONSIDER THE
 FOLLOWING FACTORS:
   (I) THE HISTORY AND CHARACTERISTICS OF THE APPLICANT AT  THE  TIME  OF
 THE  APPLICATION  FOR A REDUCTION IN SENTENCE, INCLUDING BUT NOT LIMITED
 TO:
   (1) ANY HISTORY OF ABUSE, TRAUMA, OR INVOLVEMENT IN THE CHILD  WELFARE
 SYSTEM;
   (2)  THE POTENTIAL BENEFITS TO CHILDREN AND FAMILY MEMBERS OF REUNIFI-
 CATION WITH THE APPLICANT;
   (3) REHABILITATION DEMONSTRATED BY THE APPLICANT;
   (4) THE APPLICANT'S RECORDS WHILE INCARCERATED; AND
 A. 8894                             4
 
   (5) THE APPLICANT'S EFFORTS TO PARTICIPATE IN  EDUCATIONAL,  THERAPEU-
 TIC,  AND VOCATIONAL OPPORTUNITIES WHILE INCARCERATED TO THE EXTENT SUCH
 PROGRAMS WERE AVAILABLE; PROVIDED HOWEVER THAT THE FACT THAT THE  APPLI-
 CANT  MAY HAVE BEEN UNABLE TO PARTICIPATE IN TREATMENT OR OTHER PROGRAM-
 MING  WHILE  INCARCERATED  DESPITE SUCH APPLICANT'S WILLINGNESS TO DO SO
 SHALL NOT BE CONSIDERED A NEGATIVE FACTOR IN DETERMINING AN  APPLICATION
 PURSUANT TO THIS SECTION;
   (II)  THE CIRCUMSTANCES OF THE OFFENSE, INCLUDING THE APPLICANT'S ROLE
 IN ITS COMMISSION, WHETHER THE APPLICANT  WAS  UNDER  THE  INFLUENCE  OF
 ANOTHER, AND WHETHER THERE IS ANY OTHER FACTOR THAT WOULD TEND TO DIMIN-
 ISH THE APPLICANT'S CULPABILITY;
   (III)  ANY  REPORT FROM A PHYSICAL, MENTAL, OR PSYCHIATRIC EXAMINATION
 OF THE APPLICANT CONDUCTED BY A LICENSED HEALTHCARE PROFESSIONAL;
   (IV) ANY STATEMENT OFFERED IN RESPONSE  TO  THIS  APPLICATION  BY  ANY
 VICTIM OF AN OFFENSE FOR WHICH THE APPLICANT IS IMPRISONED OR BY A FAMI-
 LY MEMBER OF THE VICTIM IF THE VICTIM IS DECEASED;
   (V)  ANY  EVIDENCE  CONCERNING  WHETHER  THE  APPLICANT'S SENTENCE WAS
 ENHANCED BECAUSE THE APPLICANT EXERCISED THEIR CONSTITUTIONAL RIGHT TO A
 TRIAL, INCLUDING BUT NOT LIMITED TO, EVIDENCE CONCERNING THE PLEA OFFERS
 MADE PRIOR TO THE TRIAL;
   (VI) ANY PRESENTATION OF ARGUMENT AND  EVIDENCE  BY  COUNSEL  FOR  THE
 APPLICANT OR BY THE APPLICANT;
   (VII) ANY PRESENTATION OF ARGUMENT AND EVIDENCE BY THE PROSECUTOR; AND
   (VIII)  THE  FINANCIAL  COST  OF  CONTINUED INCARCERATION TO THE STATE
 AND/OR LOCALITIES.
   5. A  WRITTEN  ORDER  DETERMINING  AN  APPLICATION  FOR  REDUCTION  OF
 SENTENCE  SHALL  ISSUE  FORTHWITH AND IN NO EVENT LATER THAN THIRTY DAYS
 AFTER ANY HEARING OR AFTER ALL SUBMISSIONS HAVE BEEN FILED IF NO HEARING
 IS HELD.  SUCH AN ORDER SHALL INCLUDE DETAILED WRITTEN FINDINGS OF  FACT
 AND THE REASONS FOR GRANTING OR DENYING THE APPLICATION.
   6. IN CALCULATING ANY NEW SENTENCE TO BE SERVED BY THE APPLICANT, SUCH
 APPLICANT  SHALL  BE  CREDITED  FOR  ANY  JAIL TIME CREDITED TOWARDS THE
 SUBJECT CONVICTIONS AS WELL AS  ANY  PERIOD  OF  INCARCERATION  CREDITED
 TOWARD THE SENTENCE OR SENTENCES ORIGINALLY IMPOSED.
   7.  AN  APPEAL  MAY BE TAKEN AS OF RIGHT IN ACCORDANCE WITH APPLICABLE
 PROVISIONS OF THIS CHAPTER:
   (A) FROM AN ORDER DENYING THE APPLICATION FOR A SENTENCE REDUCTION; OR
   (B) FROM A NEW SENTENCE IMPOSED UNDER THIS SECTION AND MAY BE BASED ON
 THE GROUNDS THAT:
   (I) THE TERM OF THE NEW SENTENCE IS HARSH OR EXCESSIVE; OR
   (II) THE TERM OF THE NEW SENTENCE IS UNAUTHORIZED AS A MATTER OF LAW.
   8. THE APPLICANT SHALL BE PERMITTED TO  FILE  SUCCESSIVE  APPLICATIONS
 AND SUCH APPLICATIONS SHALL NOT BE CONSIDERED MORE THAN ONCE EVERY THREE
 YEARS.
   9.  (A)  THIS  SECTION SHALL NOT BE CONSTRUED TO ABRIDGE OR MODIFY ANY
 EXISTING REMEDY AN INCARCERATED INDIVIDUAL MAY HAVE UNDER HABEAS CORPUS,
 STATUTORY OR JUDICIAL POSTCONVICTION RELIEF, OR ANY OTHER  LEGAL  FRAME-
 WORK.
   (B)  AN  APPLICATION UNDER THIS SECTION SHALL NOT IMPACT IN ANY WAY OR
 BE IMPACTED IN ANY WAY BY ANY PENDING  HABEAS  OR  OTHER  POSTCONVICTION
 PROCEEDING,  NOR  SHALL  THE DENIAL OF AN APPLICATION UNDER THIS SECTION
 PRECLUDE SUCH REMEDIES FROM BEING GRANTED.
   10. IN THREE YEARS, THE  COMPTROLLER  SHALL  CONDUCT  AN  ANALYSIS  OF
 SAVINGS  FOUND  FROM DECARCERATION AND SHALL MAKE RECOMMENDATIONS TO THE
 LEGISLATURE REGARDING DIVERTING SUCH SAVINGS TO  FUND  PRISON-BASED  AND
 COMMUNITY-BASED  PROGRAMS  DESIGNED TO COUNTER RECIDIVISM THROUGH EDUCA-
 A. 8894                             5
 
 TION, THERAPEUTIC  INTERVENTION,  MAINTENANCE  OF  FAMILIAL  AND  SOCIAL
 NETWORKS,  RESTORATIVE  JUSTICE  PRACTICES  FOR SURVIVORS OF CRIMES, AND
 SUCCESSFUL POST-CUSTODIAL RE-ENTRY TO SOCIETY.
   11.  (A)  THE  CLERK OF THE COURT UPON DETERMINATION OF AN APPLICATION
 FILED PURSUANT TO THIS SECTION SHALL REPORT THE FOLLOWING INFORMATION TO
 THE OFFICE OF COURT ADMINISTRATION:
   (I) THE NAME, DEPARTMENT  IDENTIFICATION  NUMBER,  AND  RACE  OF  EACH
 INCARCERATED PERSON WHO HAS BEEN DENIED OR GRANTED RESENTENCING;
   (II) HOW MANY YEARS OF IMPRISONMENT EACH INCARCERATED PERSON SERVED AT
 THE TIME OF THE APPLICATION;
   (III) ANY NEW SENTENCE IF APPLICABLE;
   (IV) THE COUNTY AND THE NAME OF THE JUDGE DECIDING THE APPLICATION;
   (V)  WHETHER  THE PROSECUTOR CONSENTED, OPPOSED OR TOOK NO POSITION ON
 THE APPLICATION; AND
   (VI) IF ANY PRIOR APPLICATIONS HAD BEEN SUBMITTED AND  THE  DATE  SUCH
 APPLICATIONS WERE DECIDED.
   (B) THE OFFICE OF COURT ADMINISTRATION SHALL PROVIDE AN ANNUAL COLLEC-
 TIVE  REPORT  CONTAINING THE INFORMATION RECEIVED FROM THE CLERKS OF THE
 COURT PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION TO THE GOVERNOR  AND
 LEGISLATURE.
   § 2. Any applicant who is immediately eligible to apply for a sentence
 reduction pursuant to section 440.45 of the criminal procedure law shall
 be provided the notice required pursuant to paragraph (d) of subdivision
 one of such section within sixty days of the effective date of this act.
   §  3.  This  act  shall  take  effect  immediately  and shall apply to
 offenses committed prior to, on or after the effective date of this act.