S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5091
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2023
                                ___________
 
 Introduced  by  Sen.  CLEARE -- read twice and ordered printed, and when
   printed to be committed 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  to  be  greater  than  necessary  to achieve the
   purposes of sentencing
 
   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 IS ELIGIBLE FOR RELIEF UNDER THIS SUBDIVISION WHEN
 HE OR SHE:
   (I) HAS BEEN CONVICTED, EITHER BY PLEA OR VERDICT, OF A FELONY OFFENSE
 AND IS IN THE CUSTODY OF THE DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY
 SUPERVISION;
   (II)  IS  MORE THAN TWO YEARS AWAY FROM CONDITIONAL RELEASE AT TIME OF
 FILING THE MOTION;
   (III) WAS SENTENCED TO AN INDETERMINATE TERM WITH AN AGGREGATE MINIMUM
 TERM OF TEN YEARS OR MORE OR AN AGGREGATE DETERMINATE TERM OF TEN  YEARS
 OR MORE;
   (IV)  HAS  SERVED (1) AT LEAST ONE-THIRD OF THE AGGREGATE MINIMUM TERM
 OF AN INDETERMINATE SENTENCE OR  AT  LEAST  ONE-THIRD  OF  AN  AGGREGATE
 DETERMINATE SENTENCE, OR (2) WHERE THE INDIVIDUAL IS SERVING TWO OR MORE
 SENTENCES  THAT  RUN  CONSECUTIVELY,  THE TIME REQUIRED TO BE SERVED FOR
 ELIGIBILITY UNDER SUBPARAGRAPH (I) OF THIS PARAGRAPH OR EIGHT  AND  ONE-
 THIRD YEARS, WHICHEVER IS LESS;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09726-01-3
              

 S. 5091                             2
 
   (V)  IS  NOT  CURRENTLY  SERVING A SENTENCE FOR: AN OFFENSE DEFINED IN
 ARTICLE ONE HUNDRED TWENTY-FIVE,  ONE  HUNDRED  THIRTY  OR  TWO  HUNDRED
 SIXTY-THREE  OF THE PENAL LAW; OR MONEY LAUNDERING IN SUPPORT OF TERROR-
 ISM IN THE FIRST DEGREE AS DEFINED IN SECTION 470.24 OF THE  PENAL  LAW;
 OR  MONEY  LAUNDERING  IN  SUPPORT  OF TERRORISM IN THE SECOND DEGREE AS
 DEFINED IN SECTION 470.23 OF THE PENAL LAW; OR A FELONY CRIME OF TERROR-
 ISM AS DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE  PENAL  LAW,  OTHER
 THAN THE CRIME DEFINED IN SECTION 490.20 OF SUCH LAW;
   (VI)  IS NOT CURRENTLY SERVING A SENTENCE FOR AN OFFENSE THAT INCLUDED
 AS AN ELEMENT THE INFLICTION OF SERIOUS  PHYSICAL  INJURY;  EXCEPT  THAT
 THIS SUBPARAGRAPH SHALL NOT APPLY WHEN THE INDIVIDUAL'S CRIMINAL LIABIL-
 ITY  FOR THE OFFENSE WAS BASED SOLELY ON THE PHYSICAL ACTIONS OR CONDUCT
 OF ANOTHER PURSUANT TO SECTION 20.00 OF THE PENAL LAW; OR
   (VII) IF DEFENDANT HAS APPEALED FROM A JUDGMENT OR  SENTENCE  THAT  IS
 THE  SUBJECT  OF  RELIEF  PURSUANT TO THIS SECTION, SUCH APPEAL HAS BEEN
 FINALLY DETERMINED. 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
 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; AND
   (III) WHETHER THE INDIVIDUAL HAS AVAILED HIMSELF OR HERSELF OF  EDUCA-
 TIONAL, THERAPEUTIC, AND VOCATIONAL OPPORTUNITIES WHILE IMPRISONED.
   (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.
 S. 5091                             3
 
   (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  immediately  and  shall  apply  to
 offenses  committed  before,  on  or  after the date this act shall have
 become a law.