Bill Text: NY S05749 | 2021-2022 | General Assembly | Amended

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Bill Title: Relates to granting certain individuals youthful offender status; adds a new category of individuals eligible for young adult offender status; provides for process and sentencing requirements related to such statuses.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2022-01-05 - REFERRED TO CODES [S05749 Detail]

Download: New_York-2021-S05749-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         5749--A

                               2021-2022 Regular Sessions

                    IN SENATE

                                     March 17, 2021
                                       ___________

        Introduced  by  Sen.  MYRIE  -- read twice and ordered printed, and when
          printed to be  committed  to  the  Committee  on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN  ACT  to  amend  the  criminal  procedure  law  and the penal law, in
          relation to granting certain individuals youthful offender status;  to
          add  a  new  category of individuals eligible for young adult offender
          status; and to repeal certain provisions of the criminal procedure law
          relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Section 720.10 of the criminal procedure law, as added by
     2  chapter 981 of the laws of 1971, subdivision 1 as amended by chapter 411
     3  of the laws of 1979, subdivision 2 as amended by chapter 416 of the laws
     4  of 1986, paragraph (a) of subdivision 2 as amended by chapter 316 of the
     5  laws of 2006, subdivision 3 as amended by chapter 264  of  the  laws  of
     6  2003,  and  subdivisions  4, 5 and 6 as renumbered by chapter 481 of the
     7  laws of 1978, is amended to read as follows:
     8  § 720.10 Youthful offender procedure; definition of terms.
     9    As used in this article, the following terms have the following  mean-
    10  ings:
    11    1.  "Youth"  means  a person charged with a crime alleged to have been
    12  committed when he or she was at least sixteen years old  and  less  than
    13  nineteen years old or a person charged with being a juvenile offender as
    14  defined in subdivision forty-two of section 1.20 of this chapter.
    15    2. "Eligible youth" means a youth who is eligible to be found a youth-
    16  ful offender. Every youth is so eligible unless:
    17    (a)  the  conviction  to be replaced by a youthful offender finding is
    18  for (i) a class A-I or class A-II felony, or (ii) [an  armed  felony  as
    19  defined  in subdivision forty-one of section 1.20, except as provided in
    20  subdivision three, or (iii)] rape in the first degree,  criminal  sexual

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07666-03-1
        S. 5749--A                          2

     1  act  in the first degree, or aggravated sexual abuse, except as provided
     2  in subdivision three, or
     3    (b) such youth has previously been convicted and sentenced for a felo-
     4  ny[, or
     5    (c)  such  youth  has  previously been adjudicated a youthful offender
     6  following conviction of a felony or has been  adjudicated  on  or  after
     7  September  first,  nineteen  hundred seventy-eight a juvenile delinquent
     8  who committed a designated felony act as defined  in  the  family  court
     9  act].
    10    3.  Notwithstanding the provisions of subdivision two of this section,
    11  a youth who has been convicted of [an armed felony offense or  of]  rape
    12  in  the first degree, criminal sexual act in the first degree, or aggra-
    13  vated sexual abuse is an eligible youth if  the  court  determines  that
    14  [one  or  more  of the following factors exist:] the interest of justice
    15  would be served by relieving the youth  from  the  onus  of  a  criminal
    16  record  and  by not imposing an indeterminate sentence of more than four
    17  years.  In making such determination, the court shall weigh the  follow-
    18  ing  factors:  (i) the circumstances and seriousness of the offense with
    19  due regard to the extent of the harm caused by it; (ii)  any  mitigating
    20  circumstances that bear [directly upon] on the manner in which the crime
    21  was  committed;  [or (ii)] (iii) where the [defendant] youth was not the
    22  sole participant in the crime, the [defendant's participation was  rela-
    23  tively  minor  although  not  so minor as to constitute a defense to the
    24  prosecution] level and extent of his or her direct  involvement  in  the
    25  criminal activity; (iv) the history and background of the youth; and (v)
    26  prospects  for  rehabilitation  of the youth or opportunities for inter-
    27  ventions that would assist the youth  in  leading  a  law-abiding  life.
    28  Where  the court determines that the eligible youth is a youthful offen-
    29  der, the court shall make a statement on the record of the  reasons  for
    30  its determination, a transcript of which shall be forwarded to the state
    31  division of criminal justice services, to be kept in accordance with the
    32  provisions  of subdivision three of section eight hundred thirty-seven-a
    33  of the executive law.
    34    4. "Youthful offender finding" means a finding,  substituted  for  the
    35  conviction  of  an  eligible youth, pursuant to a determination that the
    36  eligible youth is a youthful offender.
    37    5. "Youthful offender sentence" means  the  sentence  imposed  upon  a
    38  youthful offender finding.
    39    6.  "Youthful offender adjudication". A youthful offender adjudication
    40  is comprised of a youthful offender finding and  the  youthful  offender
    41  sentence imposed thereon and is completed by imposition and entry of the
    42  youthful offender sentence.
    43    §  2. Subdivision 3 of section 720.15 of the criminal procedure law is
    44  REPEALED.
    45    § 3. Subdivision 1 of section 720.20 of the criminal procedure law, as
    46  amended by chapter 652 of the laws  of  1974,  is  amended  to  read  as
    47  follows:
    48    1.  Upon  conviction of an eligible youth, the court must order a pre-
    49  sentence investigation of the defendant.   After receipt  of  a  written
    50  report  of the investigation and at the time of pronouncing sentence the
    51  court must determine whether or not the eligible  youth  is  a  youthful
    52  offender.   Such determination shall be in accordance with the following
    53  criteria:
    54    (a) If [in the opinion of the court the interest of justice  would  be
    55  served  by  relieving the eligible] the eligible youth is charged with a
    56  misdemeanor offense, a class D or E felony offense, a class C felony  as
        S. 5749--A                          3

     1  described  in  subdivision one of section 160.10 of the penal law or any
     2  offense contained in article two hundred twenty of the penal  law  other
     3  than a class A-I or A-II felony offense, the court shall find that he or
     4  she is a youthful offender.
     5    (b)  In all other cases, except when the youth is charged with rape in
     6  the first degree, and aggravated sexual abuse, there shall be a presump-
     7  tion to grant youthful offender status to an eligible youth in order  to
     8  relieve such youth from the onus of a criminal record [and by not impos-
     9  ing], other consequences of a criminal conviction, and the imposition of
    10  an  indeterminate  term  of  imprisonment  of more than four years[, the
    11  court may, in its discretion, find the  eligible  youth  is  a  youthful
    12  offender; and
    13    (b)  Where  the  conviction  is  had in a local criminal court and the
    14  eligible youth had not prior to commencement of trial or entry of a plea
    15  of guilty been convicted of a crime or found a  youthful  offender,  the
    16  court  must  find  he  is a youthful offender].  Upon motion of not less
    17  than seven days' notice, the prosecutor may challenge the presumption to
    18  grant youthful offender status.  The court shall grant youthful offender
    19  status unless the prosecutor rebuts the presumption and  establishes  by
    20  clear and convincing evidence that the criteria set forth in subdivision
    21  two  of  section  720.10  of this article require that youthful offender
    22  status be denied.
    23    § 4. Section 720.35 of the criminal procedure law, as added by chapter
    24  981 of the laws of 1971, subdivision 1 as amended by chapter 23  of  the
    25  laws of 2021, subdivisions 2 and 4 as amended by section 87 of subpart B
    26  of part C of chapter 62 of the laws of 2011 and subdivision 3 as amended
    27  by chapter 181 of the laws of 2000, is amended to read as follows:
    28  § 720.35 Youthful offender adjudication; effect thereof; records.
    29    1.  A  youthful offender or young adult adjudication is not a judgment
    30  of conviction for a crime or any other offense, and does not operate  as
    31  a  disqualification  of  any person so adjudged to hold public office or
    32  public employment or to receive any license granted by public  authority
    33  but  shall  be  deemed a conviction only for the purposes of transfer of
    34  supervision and custody pursuant to section two hundred fifty-nine-m  of
    35  the executive law. A defendant for whom a youthful offender adjudication
    36  was substituted, who was originally charged with prostitution as defined
    37  in  section  230.00  of  the  penal  law,  shall  be  deemed a "sexually
    38  exploited child" as defined in subdivision one of section  four  hundred
    39  forty-seven-a  of  the  social  services  law and therefore shall not be
    40  considered an adult for purposes related to the charges in the  youthful
    41  offender  proceeding  or a proceeding under section 170.80 of this chap-
    42  ter.
    43    2. Except where specifically required or permitted by statute or  upon
    44  specific  authorization  of  the court, all official records and papers,
    45  whether on file with the court, a police agency or the division of crim-
    46  inal justice services, relating to a case involving  a  youth  or  young
    47  adult  who  has  been adjudicated a youthful offender or granted a young
    48  adult status finding, are confidential and may not be made available  to
    49  any person or public or private agency, other than the designated educa-
    50  tional  official of the public or private elementary or secondary school
    51  in which the youth or young adult is enrolled as a student provided that
    52  such local educational official shall only have made available a  notice
    53  of  such  adjudication  and  shall not have access to any other official
    54  records and papers, such youth or young adult or such youth's  or  young
    55  adult's designated agent (but only where the official records and papers
    56  sought  are  on  file  with a court and request therefor is made to that
        S. 5749--A                          4

     1  court or to a clerk thereof), an institution  to  which  such  youth  or
     2  young adult has been committed, the department of corrections and commu-
     3  nity  supervision and a probation department of this state that requires
     4  such  official records and papers for the purpose of carrying out duties
     5  specifically authorized by  law;  provided,  however,  that  information
     6  regarding an order of protection or temporary order of protection issued
     7  pursuant  to  section  530.12  of  this  chapter  or a warrant issued in
     8  connection therewith may be maintained on the statewide automated  order
     9  of  protection  and warrant registry established pursuant to section two
    10  hundred twenty-one-a of the executive law during the  period  that  such
    11  order  of  protection  or temporary order of protection is in full force
    12  and effect or during which such warrant may be executed. Such  confiden-
    13  tial information may be made available pursuant to law only for purposes
    14  of adjudicating or enforcing such order of protection or temporary order
    15  of  protection and, where provided to a designated educational official,
    16  as defined in section 380.90 of this chapter, for  purposes  related  to
    17  the  execution  of  the  student's  educational  plan, where applicable,
    18  successful school  adjustment  and  reentry  into  the  community.  Such
    19  notification shall be kept separate and apart from such student's school
    20  records and shall be accessible only by the designated educational offi-
    21  cial.  Such  notification  shall not be part of such student's permanent
    22  school record and shall not be appended to or included in any documenta-
    23  tion regarding such student and shall be destroyed at such time as  such
    24  student  is  no longer enrolled in the school district. At no time shall
    25  such notification be used for any purpose other than those specified  in
    26  this subdivision.
    27    3.  If  a  youth  or  young  adult who has been adjudicated a youthful
    28  offender or granted a young  adult  status  finding  is  enrolled  as  a
    29  student  in a public or private elementary or secondary school the court
    30  that has [adjudicated the youth as a]  made  the  youthful  offender  or
    31  young adult adjudication shall provide notification of such adjudication
    32  to the designated educational official of the school in which such youth
    33  or  young  adult  is  enrolled as a student.  Such notification shall be
    34  used by the designated educational official only for purposes related to
    35  the execution of  the  student's  educational  plan,  where  applicable,
    36  successful  school  adjustment  and  reentry  into  the  community. Such
    37  notification shall be kept separate and apart from such student's school
    38  records and shall be accessible only by the designated educational offi-
    39  cial. Such notification shall not be part of  such  student's  permanent
    40  school record and shall not be appended to or included in any documenta-
    41  tion  regarding such student and shall be destroyed at such time as such
    42  student is no longer enrolled in the school district. At no  time  shall
    43  such  notification be used for any purpose other than those specified in
    44  this subdivision.
    45    4. Notwithstanding subdivision two of this section, whenever a  person
    46  is adjudicated a youthful offender or granted young adult status and the
    47  conviction  that  was  vacated  and replaced by the youthful offender or
    48  young adult status finding was for a sex offense as that term is defined
    49  in article ten of the mental hygiene law, all records pertaining to  the
    50  youthful offender or young adult adjudication shall be included in those
    51  records  and  reports that may be obtained by the commissioner of mental
    52  health or the commissioner of developmental disabilities,  as  appropri-
    53  ate; the case review panel; and the attorney general pursuant to section
    54  10.05 of the mental hygiene law.
        S. 5749--A                          5

     1    §  5.  Subparagraph  (i)  of paragraph (b) of subdivision 3 of section
     2  220.30 of the criminal procedure law, as amended by chapter 410  of  the
     3  laws of 1979, is amended to read as follows:
     4    (i)  A  plea of guilty, whether to the entire indictment or to part of
     5  the indictment for any crime other than a class A  felony,  may  not  be
     6  accepted  on the condition that it constitutes a complete disposition of
     7  one or more other indictments against the defendant wherein is charged a
     8  class A-I felony as defined in article two hundred twenty of  the  penal
     9  law  or the attempt to commit any such class A-I felony, except that [an
    10  eligible youth, as defined in subdivision two  of  section  720.10,  may
    11  plea  to  a  class  B felony, upon consent of the district attorney, for
    12  purposes of adjudication as a youthful offender] this restriction  shall
    13  not apply to an eligible youth, as defined in subdivision two of section
    14  720.10 of this chapter, or an eligible young adult, as defined in subdi-
    15  vision two of section 721.10 of this chapter.
    16    § 6. Subdivision 3 of section 420.30 of the criminal procedure law, as
    17  amended  by  chapter  144  of  the  laws  of 2020, is amended to read as
    18  follows:
    19    3. Restrictions. Except  as  provided  for  in  subdivision  two-a  of
    20  section 420.35 of this article, in no event shall a mandatory surcharge,
    21  sex  offender registration fee, DNA databank fee or crime victim assist-
    22  ance fee be remitted.  In no event shall such  fees  be  imposed  for  a
    23  juvenile offender, a youthful offender or a young adult status finding.
    24    § 7. Subdivision 2 of section 420.35 of the criminal procedure law, as
    25  amended by chapter 23 of the laws of 2021, is amended as follows:
    26    2. Except as provided in this subdivision or subdivision two-a of this
    27  section,  under  no  circumstances  shall  the  mandatory surcharge, sex
    28  offender registration fee, DNA databank fee or the crime victim  assist-
    29  ance  fee  be  waived.  A court shall waive any mandatory surcharge, DNA
    30  databank fee and crime victim assistance fee when: (i) the defendant  is
    31  convicted  of  prostitution  under section 230.00 of the penal law; (ii)
    32  the defendant is convicted of a violation in the event  such  conviction
    33  is  in  lieu  of  a plea to or conviction for prostitution under section
    34  230.00 of the penal law; (iii) the court finds that  a  defendant  is  a
    35  victim  of  sex  trafficking  under section 230.34 of the penal law or a
    36  victim  of  trafficking  in  persons  under  the   trafficking   victims
    37  protection act (United States Code, Title 22, Chapter 78); [or] (iv) the
    38  court finds that the defendant is a victim of sex trafficking of a child
    39  under  section  230.34-a  of  the penal law; or (v) the court determines
    40  that the defendant is a youthful offender pursuant to section 720.00  of
    41  this chapter or the court grants the defendant young adult status pursu-
    42  ant to section 721.00 of this chapter.
    43    § 8. The criminal procedure law is amended by adding a new article 721
    44  to read as follows:
    45                                 ARTICLE 721
    46                             YOUNG ADULT STATUS
    47  Section 721.10 Young adult status procedure; definition of terms.
    48          721.15 Young  adult  status  procedure;  sealing  of  accusatory
    49                   instrument;   privacy   of   proceedings;   preliminary
    50                   instructions to jury.
    51          721.20 Young  adult  status  determination;  when  and how made;
    52                   procedure thereupon.
    53          721.30 Young  adult  adjudication;  post-judgment  motions   and
    54                   appeal.
    55          721.35 Young adult adjudication; effect thereof; records.
    56  § 721.10 Young adult status procedure; definition of terms.
        S. 5749--A                          6

     1    As  used in this article, the following terms have the following mean-
     2  ings:
     3    1.   "Young adult" means a person charged with a crime alleged to have
     4  been committed when he or she was at least nineteen years old  and  less
     5  than twenty-six years old.
     6    2.  "Eligible  young  adult"  means  a person who is at least nineteen
     7  years old and less than twenty-six years old who is eligible  for  young
     8  adult  status.  Every  young  adult  is  so  eligible  unless:   (a) the
     9  conviction to be replaced by young adult adjudication is for (i) a class
    10  A-I or class A-II felony, or (ii) rape in  the  first  degree,  criminal
    11  sexual  act  in  the first degree, or aggravated sexual abuse, except as
    12  provided in subdivision three of this section, or (b) such  young  adult
    13  has previously been convicted and sentenced for a felony.
    14    3.  Notwithstanding the provisions of subdivision two of this section,
    15  a young adult who has been convicted of rape in the first degree, crimi-
    16  nal sexual act in the first degree, or aggravated  sexual  abuse  is  an
    17  eligible youth if the court determines, without applying the presumption
    18  defined  in  paragraph  (b) of subdivision one of section 721.20 of this
    19  article, that the interest of justice would be served by  relieving  the
    20  young  adult  from  the onus of a criminal record and by not imposing an
    21  indeterminate sentence of more than four years.  In making such determi-
    22  nation, the court shall weigh the following factors:
    23    (a) The circumstances and seriousness of the offense with  due  regard
    24  to the extent of the harm caused by it.
    25    (b)  Any mitigating circumstances that bear on the manner in which the
    26  crime was committed.
    27    (c) Where the young adult was not the sole participant in  the  crime,
    28  the  level  and  extent of his or her direct involvement in the criminal
    29  activity.
    30    (d) The history and background of the young adult.
    31    (e) Prospects for rehabilitation of the young adult  or  opportunities
    32  for  interventions that would assist the young adult in leading a law-a-
    33  biding life.
    34    Where the court makes a young adult status finding,  the  court  shall
    35  make  a  statement on the record of the reasons for its determination, a
    36  transcript of which shall be forwarded to the state division of criminal
    37  justice services, to be kept in accordance with the provisions of subdi-
    38  vision three of section eight hundred thirty-seven-a  of  the  executive
    39  law.
    40    4.    "Young  adult  finding"  means  a  finding,  substituted for the
    41  conviction of an eligible young adult, pursuant to a determination  that
    42  the eligible young adult shall be granted young adult status.
    43    5.  "Young  adult  sentence"  means  the sentence imposed upon a young
    44  adult finding.
    45    6. "Young adult adjudication" means an  adjudication  comprised  of  a
    46  young  adult finding and the young adult sentence imposed thereon and is
    47  completed by imposition and entry of the young adult sentence.
    48  § 721.15 Young adult status procedure; sealing of accusatory instrument;
    49             privacy of proceedings; preliminary instructions to jury.
    50    1. When an accusatory instrument against an apparently eligible  young
    51  adult  is  filed with a court, it shall be filed as a sealed instrument,
    52  though only with respect to the public.
    53    2. When an eligible young adult is initially arraigned upon an accusa-
    54  tory instrument, such arraignment and  all  proceedings  in  the  action
    55  thereafter  may,  in the discretion of the court and with the consent of
    56  the accused, be conducted in private.
        S. 5749--A                          7

     1  § 721.20 Young adult status determination; when and how made;  procedure
     2             thereupon.
     3    1. Upon conviction of an eligible young adult, the court shall order a
     4  pre-sentence  investigation of the defendant. After receipt of a written
     5  report of the investigation and at the time of pronouncing sentence  the
     6  court  shall  determine  whether  or not the eligible youth will receive
     7  young adult status.  Such determination shall be in accordance with  the
     8  following criteria:
     9    (a) If the eligible young adult is charged with a misdemeanor offense,
    10  the court shall grant him or her young adult status;
    11    (b)  In  all  other  cases,  except rape in the first degree, criminal
    12  sexual act in the first degree, and aggravated sexual abuse, there shall
    13  be a presumption to grant eligible young adult  status  to  an  eligible
    14  young  adult  in  order  to  relieve such young adult from the onus of a
    15  criminal record, other consequences of a criminal  conviction,  and  the
    16  imposition  of  an  indeterminate term of imprisonment of more than four
    17  years.  Upon motion on not less than seven days' notice, the  prosecutor
    18  may  challenge  the  presumption to grant young adult status.  The court
    19  shall grant young adult status unless the prosecutor rebuts the presump-
    20  tion and establishes by clear and convincing evidence that the  criteria
    21  set  forth  in subdivision two of section 721.10 of this article require
    22  that young adult status be denied.
    23    2. Where an eligible young adult is convicted of two or more crimes or
    24  offenses set forth in separate counts of an accusatory instrument or set
    25  forth in two or  more  accusatory  instruments  consolidated  for  trial
    26  purposes,  the  court shall not grant him or her young adult status with
    27  respect to any such conviction  pursuant  to  subdivision  one  of  this
    28  section  unless  it  grants  young adult status with respect to all such
    29  convictions.
    30    3. Upon determining to grant  young  adult  status,  the  court  shall
    31  direct  that  the  conviction  be deemed vacated and replaced by a young
    32  adult status finding; and the  court  shall  sentence  the  young  adult
    33  pursuant to section 60.02 of the penal law.
    34    4.  Upon determining that an eligible young adult shall not be granted
    35  young adult status, the court  shall  order  the  accusatory  instrument
    36  unsealed  and  continue  the action to judgment pursuant to the ordinary
    37  rules governing criminal prosecutions.
    38  § 721.30 Young adult adjudication; post-judgment motions and appeal.
    39    The provisions of this chapter, governing the making and determination
    40  of post-judgment motions and the taking and determination of appeals  in
    41  criminal  cases, apply to post judgment motions and appeals with respect
    42  to young adult adjudications wherever such provisions can reasonably  be
    43  so applied.
    44  § 721.35 Young adult adjudication; effect thereof; records.
    45    1.  A  young  adult adjudication is not a judgment of conviction for a
    46  crime or any other offense, and does not operate as  a  disqualification
    47  of  any person so adjudged to hold public office or public employment or
    48  to receive any license granted by public authority but shall be deemed a
    49  conviction only for the purposes of transfer of supervision and  custody
    50  pursuant to section two hundred fifty-nine-m of the executive law.
    51    2.  Upon  receipt  of notification of a young adult adjudication, such
    52  adjudication and all records thereof shall be sealed in the same  manner
    53  as  defined  in section 720.35 of this title; and such records shall not
    54  be available except where  specifically  required  by  statute  or  upon
    55  specific authorization by the court.
        S. 5749--A                          8

     1    §  9.  The  criminal  procedure law is amended by adding a new section
     2  440.49 to read as follows:
     3  § 440.49 Resentencing; youthful offender.
     4    1.  Any  person  under the age of twenty-six at the time the crime was
     5  committed who was convicted of a misdemeanor or  violation  offense  who
     6  would  have  been considered an "eligible youth" pursuant to subdivision
     7  two of section 720.10 of this chapter  and  an  "eligible  young  adult"
     8  pursuant  to subdivision two of section 721.10 of this chapter after the
     9  effective date of this section shall have their conviction automatically
    10  replaced with a youthful offender adjudication or young  adult  offender
    11  adjudication  within  six  months  of  the statute's effective date. The
    12  division of criminal  justice  services  shall  establish  standards  to
    13  ensure  that  such process occurs automatically for all persons prior to
    14  such six month deadline.
    15    2. Any person under the age of twenty-six at the time  the  crime  was
    16  committed who would have been considered an "eligible youth" pursuant to
    17  subdivision two of section 720.10 of this chapter and an "eligible young
    18  adult"  pursuant  to  subdivision  two of section 721.10 of this chapter
    19  after the effective date of this section, upon notice to the appropriate
    20  district attorney, may petition to be resentenced to a youthful offender
    21  adjudication or young adult offender  adjudication  in  accordance  with
    22  articles seven hundred twenty and seven hundred twenty-one of this chap-
    23  ter in the court which imposed such sentence. Even if a person is eligi-
    24  ble for automatic youthful offender adjudication or young adult offender
    25  adjudication  sealing  pursuant to subdivision one of this section, such
    26  person may still petition the court for resentencing prior  to  the  six
    27  month period described in subdivision one of this section.
    28    3. The court shall consider the factors outlined in subdivision two of
    29  section  720.20 and subdivision two of section 721.20 of this chapter in
    30  determining whether or not a person who  would  have  been  an  eligible
    31  youth  may  or  shall be granted youthful offender status or young adult
    32  offender status for the prior conviction.
    33    (a) In cases where granting youthful offender status  or  young  adult
    34  offender  status  is  discretionary and not required by paragraph (a) of
    35  subdivision one of section 720.20 or paragraph (a) of subdivision one of
    36  section 721.20 of this chapter, the court shall also consider any  addi-
    37  tional evidence presented by the person seeking resentencing, including:
    38    (i)  the  amount  of time that has elapsed since the petitioner's last
    39  conviction;
    40    (ii) the character of the petitioner, including any measures  that  he
    41  or she has taken towards rehabilitation, such as participating in treat-
    42  ment  programs,  work,  or  schooling,  and  participating  in community
    43  service or other volunteer programs;
    44    (iii) the circumstances and seriousness of the offense for  which  the
    45  petitioner is seeking relief;
    46    (iv)  the  impact  of  sealing the petitioner's record upon his or her
    47  rehabilitation and upon his or her successful and productive reentry and
    48  reintegration into society; and
    49    (v) the impact of collateral consequences of  the  conviction  on  the
    50  defendant and his or her family.
    51    (b)  The  district  attorney  may  challenge  the presumption to grant
    52  youthful offender status pursuant to paragraph (b) of subdivision one of
    53  section 720.20 and paragraph (b) of subdivision one of section 721.20 of
    54  this chapter.
    55    4. Subdivision one of section seven hundred seventeen and  subdivision
    56  four  of  section  seven  hundred  twenty-two of the county law, and the
        S. 5749--A                          9

     1  related provisions of article eighteen-A of such law shall apply to  the
     2  preparation and proceedings on motions pursuant to this section, includ-
     3  ing any appeals.
     4    §  10.  Section  450.10  of  the  criminal procedure law is amended by
     5  adding a new subdivision 6 to read as follows:
     6    6. An order denying a motion, made pursuant to section 440.49 of  this
     7  title, for granting youthful offender or young adult status.
     8    §  11.  Subdivision  2  of section 60.00 of the penal law, as added by
     9  chapter 481 of the laws of 1978, is amended and a new subdivision  3  is
    10  added to read as follows:
    11    2.  The sole provision of this article that shall apply in the case of
    12  an offense committed by a juvenile offender [is] or a defendant  adjudi-
    13  cated  a youthful offender or young adult in section 60.10 of this arti-
    14  cle and no other provisions of this article shall be deemed or construed
    15  to apply in any such case.
    16    3. The sole provisions of this article that may apply in the  case  of
    17  an  offense  committed by a defendant adjudicated a youthful offender or
    18  young adult status are sections 60.02 and 60.10-a of this article and no
    19  other provisions of this article shall be deemed or construed  to  apply
    20  in any such case.
    21    §  12.  Subdivisions  1  and  2  of section 60.02 of the penal law, as
    22  amended by chapter 471 of the laws of 1980, are amended and a new subdi-
    23  vision 3 is added to read as follows:
    24    (1) If the sentence is to be imposed upon a youthful offender or young
    25  adult status finding which has been substituted for a conviction  of  an
    26  offense other than a felony, the court must impose a sentence authorized
    27  for  the  offense for which the youthful offender or young adult finding
    28  was substituted[, except that  if  the  youthful  offender  finding  was
    29  entered  pursuant  to paragraph (b) of subdivision one of section 720.20
    30  of the criminal procedure law,] where the conviction is for a  misdemea-
    31  nor  the  court  must  not impose a definite or intermittent sentence of
    32  imprisonment with a term of more than six months; or
    33    (2) If the sentence is to be imposed upon a youthful offender  finding
    34  which  has  been  substituted for a conviction for any felony, the court
    35  must impose a sentence authorized to be imposed upon a person  convicted
    36  of a class E felony [provided, however, that the court must not impose a
    37  sentence  of  conditional  discharge  or  unconditional discharge if the
    38  youthful offender finding was substituted for a conviction of  a  felony
    39  defined in article two hundred twenty of this chapter].
    40    3.  If the sentence is to be imposed upon a young adult status finding
    41  which has been substituted for a conviction for any  felony,  the  court
    42  shall impose a sentence authorized to be imposed upon a person convicted
    43  of a class E felony.
    44    §  13.  Subdivision 4 of section 80.00 of the penal law, as amended by
    45  chapter 338 of the laws of 1989, is amended to read as follows:
    46    4. Exception. The provisions of this section  shall  not  apply  to  a
    47  corporation,  or  to  a  youthful offender finding as defined in section
    48  720.10 of the criminal procedure law or young adult  status  finding  as
    49  defined in section 721.10 of the criminal procedure law.
    50    §  14.  Subdivision  6 of section 80.05 of the penal law is amended to
    51  read as follows:
    52    6. Exception. The provisions of this section  shall  not  apply  to  a
    53  corporation,  or  to  a  youthful offender finding as defined in section
    54  720.10 of the criminal procedure law or young adult  status  finding  as
    55  defined in section 721.10 of the criminal procedure law.
        S. 5749--A                         10

     1    §  15.  Subdivision 7 of section 340.40 of the criminal procedure law,
     2  as added by chapter 981 of the laws of  1971,  is  amended  to  read  as
     3  follows:
     4    7.  Notwithstanding any other provision of law, [in any local criminal
     5  court] the trial of a person who is an eligible youth within the meaning
     6  of the youthful offender procedure set forth in  article  seven  hundred
     7  twenty  [and  who  has  not  prior  to  commencement  of  the trial been
     8  convicted of a crime or adjudicated a youthful offender must be] of this
     9  chapter shall be a jury trial or, where the eligible youth has waived  a
    10  jury  trial  pursuant  to  section  320.10  of this part, a single judge
    11  trial.
    12    § 16. This act shall  take  effect  on  the  first  of  November  next
    13  succeeding  the date on which it shall have become a law and shall apply
    14  to any criminal case pending on such effective date.