Bill Text: NY A00531 | 2023-2024 | General Assembly | Introduced
Bill Title: Authorizes certain persons confined in institutions operated by the department of corrections and community supervision to apply for a sentence reduction.
Spectrum: Partisan Bill (Democrat 52-0)
Status: (Introduced) 2024-01-03 - referred to codes [A00531 Detail]
Download: New_York-2023-A00531-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 531 2023-2024 Regular Sessions IN ASSEMBLY 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: 1 Section 1. The criminal procedure law is amended by adding a new 2 section 440.45 to read as follows: 3 § 440.45 Application for sentence reduction. 4 1. (a) Notwithstanding any other provision of law, including any mini- 5 mum sentence requirement, any person confined in an institution operated 6 by the department of corrections and community supervision who has 7 served ten years of their sentence, or one-half of the minimum term of 8 an indeterminate sentence where the minimum term equals or exceeds ten 9 years, or one-half of a determinate sentence where the sentence equals 10 or exceeds ten years, whichever is less, may apply for a reduction of 11 their sentence pursuant to the provisions of this statute. For the 12 purposes of this subdivision, the term "sentence" shall include any 13 aggregate sentence where consecutive sentences are imposed. 14 (b) Notwithstanding paragraph (a) of this subdivision, an otherwise 15 ineligible person shall be deemed eligible to apply for a reduction in 16 sentence upon consent of the prosecutor in the underlying criminal 17 action in which the sentence was imposed. 18 (c) Notwithstanding paragraph (a) of this subdivision, the prosecutor 19 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. LBD00647-02-3A. 531 2 1 initiate an application for resentencing on behalf of the incarcerated 2 individual and upon such application an attorney shall be assigned to 3 represent the incarcerated individual in proceedings pursuant to this 4 section. 5 (d) No waiver of the right to make an application for a sentence 6 reduction under this section shall be permitted or honored by the 7 sentencing court. Any such waiver shall be deemed void and unenforcea- 8 ble. 9 (e) No less than thirty days before the date on which the person 10 becomes eligible pursuant to paragraph (a) of this subdivision to apply 11 for a sentence reduction, the department of corrections and community 12 supervision shall provide written notice of this section and its 13 provisions to: 14 (i) the defendant; 15 (ii) the attorney of record; 16 (iii) the administrator of the county panel established for purposes 17 of the administration of article eighteen-B of the county law and all 18 institutional offices that provide criminal defense services within the 19 county in which the sentence was imposed; 20 (iv) Prisoners' Legal Services of New York; 21 (v) the sentencing court; and 22 (vi) the prosecutor in the underlying criminal action in which the 23 sentence was imposed. 24 (f) A person who is eligible for a sentence reduction pursuant to this 25 subdivision may request that the court assign him or her an attorney for 26 the preparation of and proceedings on the application for resentencing 27 pursuant to this section. The attorney shall be assigned in accordance 28 with the provisions of subdivision one of section seven hundred seven- 29 teen and subdivision four of section seven hundred twenty-two of the 30 county law and the related provisions of article eighteen-A of such law 31 for the application and any proceedings under this section, including 32 any appeal and successive application. The court shall notify the appli- 33 cant about the appointment of counsel. 34 2. (a) An application for a sentence reduction under this section 35 shall be filed in the county in which the sentence was imposed to reduce 36 the sentence of the applicant pursuant to this section and may include 37 affidavits, letters, declarations, records from the department of 38 corrections and community supervision, video submissions, or any other 39 written or electronic material. 40 (b) Upon the court's receipt of an application for a sentence 41 reduction, the court shall promptly notify the appropriate prosecutor 42 and provide such prosecutor with a copy of the application. 43 (c) An application filed pursuant to this section shall be randomly 44 assigned by the administrative judge designated by the office of court 45 administration with jurisdiction over the county where the application 46 is filed to any superior court judge with criminal jurisdiction other 47 than the judge who first sentenced the applicant unless the judge who 48 first sentenced the applicant is the only judge in that county. 49 (d) An application filed under this section may be amended or supple- 50 mented as necessary. 51 (e) After the filing of an application to reduce a sentence under this 52 section, the court may direct the parties to expand the record by 53 submitting additional written materials relating to the application. 54 (f) (i) The court shall, upon request of the applicant or the prose- 55 cuting office, conduct a hearing on the application, at which the appli- 56 cant and counsel for the applicant shall be given the opportunity to beA. 531 3 1 heard. Such hearing shall be recorded or transcribed. The applicant has 2 the right to be present at any such hearing unless the applicant waives 3 the right to be present in writing. 4 (ii) In a hearing pursuant to subparagraph (i) of this paragraph, the 5 court shall allow parties to present any evidence pertinent to the issue 6 of a sentence reduction and the factors outlined in paragraph (b) of 7 subdivision four of this section. Such evidence may include documents, 8 live testimony, tangible objects, or any other class of evidence or 9 information pertinent to sentencing. At such hearing, the applicant 10 shall have the right to make a statement personally, on their own 11 behalf, in the same manner as provided in subdivision one of section 12 380.50 of this part. 13 3. (a) Notwithstanding any other provision of law, a court shall 14 reduce a term of imprisonment imposed upon a defendant if: 15 (i) the applicant is eligible pursuant to subdivision one of this 16 section; and 17 (ii) the court finds, after considering the factors set forth in 18 subdivision four of this section, that the interests of justice warrant 19 a sentence modification. 20 (b) (i) Notwithstanding any other provision of law, when reducing an 21 applicant's sentence under this section, the court may issue a sentence 22 less than the minimum term otherwise required by article seventy of the 23 penal law. Otherwise, the applicable provisions in article seventy of 24 the penal law in effect at the time of the sentence reduction shall 25 apply. 26 (ii) Notwithstanding any other provision of law, when reducing an 27 applicant's sentence under this section, the court may issue a sentence 28 to be served concurrently to any other sentence of imprisonment, being 29 served by the applicant. 30 (iii) Notwithstanding any other provision of law, when reducing an 31 applicant's sentence under this section, the court may sentence the 32 applicant to a less than minimum term of supervised release otherwise 33 required by law. 34 (c) In ordering a sentence reduction, the court shall, unless counter- 35 vailing considerations require, reduce the applicant's sentence so that 36 the applicant will be eligible for immediate release from prison after 37 the necessary calculations. 38 (d) The court may not increase any applicant's sentence, and if the 39 original judgment was the result of a plea agreement, resentencing 40 pursuant to this section shall not constitute grounds for a prosecutor 41 or the court to withdraw their agreement to the original plea agreement. 42 4. (a) There shall be a rebuttable presumption that the applicant's 43 sentence shall be reduced in the case of: 44 (i) an applicant who is fifty-five years of age or older on the date 45 on which the applicant files an application for a sentence reduction 46 pursuant to subdivision one of this section; or 47 (ii) an applicant who was twenty-five years old or younger on the date 48 on which the applicant committed the offense or offenses for which the 49 applicant is imprisoned. 50 (b) The court, in determining whether to reduce a term of imprisonment 51 pursuant to subdivision three of this section, shall consider the 52 following factors: 53 (i) the history and characteristics of the applicant at the time of 54 the application for a reduction in sentence, including but not limited 55 to:A. 531 4 1 (1) any history of abuse, trauma, or involvement in the child welfare 2 system; 3 (2) the potential benefits to children and family members of reunifi- 4 cation with the applicant; 5 (3) rehabilitation demonstrated by the applicant; 6 (4) the applicant's records while incarcerated; and 7 (5) the applicant's efforts to participate in educational, therapeu- 8 tic, and vocational opportunities while incarcerated to the extent such 9 programs were available; provided however that the fact that the appli- 10 cant may have been unable to participate in treatment or other program- 11 ming while incarcerated despite such applicant's willingness to do so 12 shall not be considered a negative factor in determining an application 13 pursuant to this section; 14 (ii) the circumstances of the offense, including the applicant's role 15 in its commission, whether the applicant was under the influence of 16 another, and whether there is any other factor that would tend to dimin- 17 ish the applicant's culpability; 18 (iii) any report from a physical, mental, or psychiatric examination 19 of the applicant conducted by a licensed healthcare professional; 20 (iv) any statement offered in response to this application by any 21 victim of an offense for which the applicant is imprisoned or by a fami- 22 ly member of the victim if the victim is deceased; 23 (v) any evidence concerning whether the applicant's sentence was 24 enhanced because the applicant exercised their constitutional right to a 25 trial, including but not limited to, evidence concerning the plea offers 26 made prior to the trial; 27 (vi) any presentation of argument and evidence by counsel for the 28 applicant or by the applicant; 29 (vii) any presentation of argument and evidence by the prosecutor; and 30 (viii) the financial cost of continued incarceration to the state 31 and/or localities. 32 5. A written order determining an application for reduction of 33 sentence shall issue forthwith and in no event later than thirty days 34 after any hearing or after all submissions have been filed if no hearing 35 is held. Such an order shall include detailed written findings of fact 36 and the reasons for granting or denying the application. 37 6. In calculating any new sentence to be served by the applicant, such 38 applicant shall be credited for any jail time credited towards the 39 subject convictions as well as any period of incarceration credited 40 toward the sentence or sentences originally imposed. 41 7. An appeal may be taken as of right in accordance with applicable 42 provisions of this chapter: 43 (a) from an order denying the application for a sentence reduction; or 44 (b) from a new sentence imposed under this section and may be based on 45 the grounds that: 46 (i) the term of the new sentence is harsh or excessive; or 47 (ii) the term of the new sentence is unauthorized as a matter of law. 48 8. The applicant shall be permitted to file successive applications 49 and such applications shall not be considered more than once every three 50 years. 51 9. (a) This section shall not be construed to abridge or modify any 52 existing remedy an incarcerated individual may have under habeas corpus, 53 statutory or judicial postconviction relief, or any other legal frame- 54 work. 55 (b) An application under this section shall not impact in any way or 56 be impacted in any way by any pending habeas or other postconvictionA. 531 5 1 proceeding, nor shall the denial of an application under this section 2 preclude such remedies from being granted. 3 10. In three years, the comptroller shall conduct an analysis of 4 savings found from decarceration and shall make recommendations to the 5 legislature regarding diverting such savings to fund prison-based and 6 community-based programs designed to counter recidivism through educa- 7 tion, therapeutic intervention, maintenance of familial and social 8 networks, restorative justice practices for survivors of crimes, and 9 successful post-custodial re-entry to society. 10 11. (a) The clerk of the court upon determination of an application 11 filed pursuant to this section shall report the following information to 12 the office of court administration: 13 (i) the name, department identification number, and race of each 14 incarcerated individual who has been denied or granted resentencing; 15 (ii) how many years of imprisonment each incarcerated individual 16 served at the time of the application; 17 (iii) any new sentence if applicable; 18 (iv) the county and the name of the judge deciding the application; 19 (v) whether the prosecutor consented, opposed or took no position on 20 the application; and 21 (vi) if any prior applications had been submitted and the date such 22 applications were decided. 23 (b) The office of court administration shall provide an annual collec- 24 tive report containing the information received from the clerks of the 25 court pursuant to paragraph (a) of this subdivision to the governor and 26 legislature. 27 § 2. Any applicant who is immediately eligible to apply for a sentence 28 reduction pursuant to section 440.45 of the criminal procedure law shall 29 be provided the notice required pursuant to paragraph (d) of subdivision 30 1 of such section within sixty days of the effective date of this act. 31 § 3. This act shall take effect immediately and shall apply to 32 offenses committed prior to, on or after the effective date of this act.
