S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    531
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 9, 2023
                                ___________
 
 Introduced by M. of A. WALKER, RIVERA, ANDERSON, AUBRY, BURDICK, BURGOS,
   CARROLL,  CLARK,  COOK,  CRUZ,  CUNNINGHAM, DARLING, DICKENS, EPSTEIN,
   FORREST, GALLAGHER, GIBBS, GONZALEZ-ROJAS,  HEVESI,  JACKSON,  KELLES,
   LUCAS,  MAMDANI, MEEKS, MITAYNES, PRETLOW, REYES, L. ROSENTHAL, SEPTI-
   MO, SIMON, TAPIA, TAYLOR, WEPRIN -- 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00647-02-3
              

 A. 531                              2
 
 INITIATE  AN  APPLICATION FOR RESENTENCING ON BEHALF OF THE INCARCERATED
 INDIVIDUAL AND UPON SUCH APPLICATION AN ATTORNEY SHALL  BE  ASSIGNED  TO
 REPRESENT  THE  INCARCERATED  INDIVIDUAL 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.
   (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; AND
   (VI)  THE  PROSECUTOR  IN  THE UNDERLYING CRIMINAL ACTION 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
 A. 531                              3
 
 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
 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:
 A. 531                              4
 
   (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
   (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
 A. 531                              5
 
 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-
 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 INDIVIDUAL WHO HAS BEEN DENIED OR GRANTED RESENTENCING;
   (II)  HOW  MANY  YEARS  OF  IMPRISONMENT  EACH INCARCERATED INDIVIDUAL
 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
 1 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.