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A. 4409 Summary:

BILL NOA04409B
 
SAME ASSAME AS S02036-B
 
SPONSORAubry
 
COSPNSRPerry, Lifton, Peoples-Stokes, Titone, Paulin, Bronson, Zebrowski, O'Donnell, Pretlow, Jaffee, Crespo, Schimel, Magnarelli, Mosley, Rozic, Barrett, Robinson, Gottfried, Simotas, Hevesi, Wright, Blake, Arroyo, Ortiz, Quart, Cook, Hooper, Cahill, Linares, Pichardo, Richardson, Weprin, Stirpe
 
MLTSPNSRBrennan, Fahy, Galef, Glick, Hikind, Lentol, Magee, Markey, Rodriguez, Rosenthal, Simon, Solages, Thiele, Titus, Walter
 
Amd §§60.12 & 70.45, Pen L; add §440.47, amd §§450.90 & 390.50, CP L
 
Relates to sentencing and resentencing in domestic violence cases.
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A. 4409 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4409B
 
SPONSOR: Aubry (MS)
  TITLE OF BILL: An act to amend the penal law and the criminal proce- dure law, in relation to sentencing and resentencing in domestic violence cases   PURPOSE: To expand upon the existing provisions of alternative sentencing for domestic violence cases; second, to allow judges the opportunity to resentence currently incarcerated persons for offenses in which certain domestic violence criteria was a significant element of the offense.   SUMMARY OF PROVISIONS: Section 1 of the bill amends § 60.12 of the penal law to add new subdi- visions 4 through 11 to specify which offenses may be considered under the section, and provides the alternate sentencing ranges a judge may impose upon a determination the defendant was a victim of domestic violence at the time of the offense and the abuse was a significant contributing factor in the commission of the offense. Section 2 of the bill amends § 70.45 of the penal law to permit determi- nate sentencing for persons sentenced pursuant to § 60.12(12). Section 3 of the bill adds a new § 440.47 to the criminal procedure law to allow currently incarcerated persons to apply for resentencing pursu- ant to § 60.12 of the penal law. Section 4 of the bill amends § 450.90 of the criminal procedure law to Grant leave for appeal to include the new § 440.47. Section 5 of the bill amends § 390.50 of the criminal procedure law to allow defendants seeking relief under § 60.12 to access his or her pre- sentence reports. Section 6 of the bill provides that sections one and two of this act shall take place immediately, with sections three, four, and five, taking place within 90 days after it has become law.   JUSTIFICATION: Domestic violence and women's incarceration are inextricably linked: 9 out of 10 incarcerated women have experienced severe physical or sexual violence in their lifetimes; 8 out of 10 experienced serious physical or sexual violence during childhood; 75% suffered severe physical violence by an intimate partner during adulthood; and 37% were raped before their incarceration. Ninety-three percent of women convicted of killing an intimate partner were abused by an intimate partner in the past. Over the past 30 years, domestic violence has been increasingly recog- nized as a national epidemic. Unfortunately, the significant advances made by the anti-violence movement have stopped short of reforming the unjust ways in which the criminal justice system responds to and punishes domestic violence survivors who act to protect themselves from an abuser's violence. All too often, when a survivor defends herself and her children, our criminal justice system responds with harsh punishment instead of with compassion and assistance. Much of this punishment is a result of our state's current sentencing structure which does not allow judges discretion to fully consider the impact of domestic violence when deter- mining sentence lengths. This leads to long, unfair prison sentences for many survivors. The Domestic Violence Survivors Justice Act would address this problem for both male and female survivors of domestic violence by: (1) allowing judges to sentence survivors to alternative sentences of imprisonment including determinate sentences and, in some cases, community-based alternative-to incarceration program and (2) providing survivors currently in prison the opportunity to apply for resentencing, granting much-deserved relief for incarcerated individuals who pose no threat to public safety. The Act contains protections to ensure appropriate use of this discretion - a judge can only grant an alternative sentence to a defend- ant if s/he finds that: (1) the defendant was, at the time of the offense, a victim of domestic violence subjected to substantial phys- ical, sexual or psychological abuse inflicted by a member of the "same family or household" as the defendant as that term is defined in subdi- vision one of section 530.11 of the criminal procedure law; (2) the abuse was a "significant contributing factor" to the defendant's partic- ipation in the crime; and, (3) a sentence under current law would be "unduly harsh." The bill requires a judge to apply the same test when determining resen- tencing eligibility for an incarcerated survivor who submits a resen- tencing application to the court. In order to be considered for eligi- bility, an incarcerated survivor is also required to include evidence corroborating the claim she was, at the time of the offense, a victim of domestic violence. The Act would address shortcomings in New York's current domestic violence sentencing exception, enacted-as part of the state's 1995 Sentencing Reform Act; commonly known as Jenna's Law. This exception allows judges to give survivors indeterminate sentences. At the time state officials thought this exception would lead to less punitive sentencing for survivors unfortunately, it did not. In 2007, only one person had been sentenced under this exception. He received 6 to 12 years (longer than the minimum term allowed for individuals not sentenced under this provision) and was denied parole twice. In 2009,not a single person was incarcerated under the exception. The New York State Sentencing Commission, established in 2007, noted that this law should be replaced "with a comparable ameliorative provision that would allow for the imposition of less harsh, determinate sentences in such cases." The Domestic Violence Survivors Justice Act would do just that. Eligibility for alternative indeterminate sentences of imprisonment, determinate sentences of imprisonment and alternatives to incarceration for women survivors is particularly appropriate as they most often have no prior criminal records, no history of violence and extremely low recidivism rates: of the 38 women convicted of murder and released between 1985 and 2003, not a single one returned to prison for a new crime within a 36-month period of release - a 0% recidivism rate. Community-based alternative programs are far more effective than prison in allowing survivors to rebuild relationships with their families, recover from abuse, and take responsibility while positively participat- ing in their communities. Allowing mothers to live in the community while serving sentences also permits them to maintain ties to children and lessen the trauma of separation - thereby increasing the likelihood that children will receive the support they need to become healthy, productive adults. In addition, New York can save substantial costs by sentencing DV survi- vors to lower sentences and alternative programs. It costs approximately $43,000 per year to incarcerate a person in a New York State prison, while the annual cost per participant of an alternative to incarceration program in New York City is only $11,000. Alternative programs save taxpayers tens of thousands of dollars per person each year while help- ing to build healthy and safe individuals and communities. Domestic and international human rights standards uphold the right of women and all people - to live free from violence. Our government has recognized its responsibility to preserve this right and provide support for DV survivors. This responsibility does not end when a survivor becomes involved in the criminal justice system because of the abuse she suffers - in part because the very lack of adequate protection, inter- vention and support is what often leads to this involvement in the first place. With no compromise to public safety, the DV Survivors Justice Act will help New York address the years of injustice faced by survivors whose lives have been shattered by domestic abuse and decrease the likelihood of survivors being victimized by the very system that should help protect them.   PRIOR LEGISLATIVE HISTORY: A.7874-A amended and recommitted to codes in 2011; referred to codes in 2012 and 2013. A.4314-C was amended and recommitted to codes in 2013; and 2014.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Given that this legislation may result in: (1) alternative sentences and nonincarcerative sentences for at least some domestic violence survi- vor-defendants and (2) resentencing and conditional release for at least some currently incarcerated survivors, it is very likely that this bill will save the state funds.   EFFECTIVE DATE: This act shall take effect immediately; provided, however, that sections one and two of this act shall apply to offenses committed on, after and prior to such effective date where the sentence for such offense has not yet been imposed; provided, further that sections three, four and five of this act shall take effect on the ninetieth day after it shall have become law.
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A. 4409 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4409--B
                                                                Cal. No. 483
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 30, 2015
                                       ___________
 
        Introduced  by  M.  of  A. AUBRY, PERRY, LIFTON, PEOPLES-STOKES, TITONE,
          PAULIN, BRONSON, ZEBROWSKI, O'DONNELL, PRETLOW, JAFFEE, CRESPO,  SCHI-
          MEL, MAGNARELLI, MOSLEY, ROZIC, BARRETT, ROBINSON, GOTTFRIED, SIMOTAS,
          HEVESI,  WRIGHT,  BLAKE,  ARROYO,  ORTIZ, QUART, COOK, HOOPER, CAHILL,
          LINARES, PICHARDO, RICHARDSON, WEPRIN -- Multi-Sponsored by --  M.  of
          A. BRENNAN, DUPREY, FAHY, GALEF, GLICK, HIKIND, LENTOL, MAGEE, MARKEY,
          RODRIGUEZ,  ROSENTHAL,  SIMON,  SOLAGES, THIELE, TITUS, WALTER -- read
          once and referred to the Committee on  Codes  --  recommitted  to  the
          Committee  on  Codes  in  accordance  with  Assembly Rule 3, sec. 2 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted  to said committee -- reported from committee, advanced to
          a third reading, amended and ordered reprinted, retaining its place on
          the order of third reading
 
        AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
          relation to sentencing and resentencing in domestic violence cases
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Section 60.12 of the penal law, as added by  chapter  1  of
     2  the laws of 1998, is amended to read as follows:
     3  § 60.12 Authorized disposition; alternative [indeterminate] sentence [of
     4            imprisonment]; domestic violence cases.
     5    1. Notwithstanding any other provision of law, where a court is impos-
     6  ing  sentence  upon  a  person  pursuant to section 70.00, 70.02 [upon a
     7  conviction  for  an  offense  enumerated  in  subdivision  one  of  such
     8  section],  70.06  or  subdivision  two or three of section 70.71 of this
     9  title, other than for an offense defined in [article one hundred  thirty
    10  of  this  chapter]  section  125.26, 125.27, subdivision five of section
    11  125.25, or article 490 of this chapter, or for an  offense  which  would
    12  require  such  person  to register as a sex offender pursuant to article
    13  six-C of the correction law, an attempt or conspiracy to commit any such
    14  offense, and is  authorized  or  required  pursuant  to  [such  section]
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07697-06-6

        A. 4409--B                          2
 
     1  sections  70.00,  70.02,  70.06  or  subdivision two or three of section
     2  70.71 of this title to impose a [determinate] sentence  of  imprisonment
     3  [for  such offense], the court, upon a determination following a hearing
     4  that  (a)  at the time of the instant offense, the defendant was [the] a
     5  victim of domestic violence subjected to substantial physical, sexual or
     6  psychological abuse [by the victim or intended victim of such  offense,]
     7  inflicted  by  a member of the same family or household as the defendant
     8  as such term is defined in subdivision one  of  section  530.11  of  the
     9  criminal  procedure  law;  (b) such abuse was a significant contributing
    10  factor [in causing the defendant to commit such offense  and]    to  the
    11  defendant's  criminal  behavior;  (c)  [the victim or intended victim of
    12  such offense was a member of the same family or household as the defend-
    13  ant as such term is defined in subdivision one of section 530.11 of  the
    14  criminal  procedure  law,  may,  in  lieu  of  imposing such determinate
    15  sentence of imprisonment, impose an indeterminate sentence of  imprison-
    16  ment  in  accordance  with  subdivisions two and three of this section.]
    17  having regard for the nature and circumstances  of  the  crime  and  the
    18  history,  character  and  condition of the defendant, that a sentence of
    19  imprisonment pursuant to section 70.00, 70.02 or  70.06  of  this  title
    20  would  be  unduly harsh may instead impose a sentence in accordance with
    21  this section.
    22    A court may  determine  that  such  abuse  constitutes  a  significant
    23  contributing  factor  pursuant  to  paragraph  (b)  of  this subdivision
    24  regardless of whether the defendant raised a defense pursuant to article
    25  thirty-five, article forty, or subdivision one of section 125.25 of this
    26  chapter.
    27    At the hearing to determine whether the defendant should be  sentenced
    28  pursuant  to  this  section,  the  court shall consider oral and written
    29  arguments, take testimony from witnesses offered by  either  party,  and
    30  consider  relevant evidence to assist in making its determination. Reli-
    31  able hearsay shall be admissible at such hearings.
    32    2. [The maximum term of an indeterminate sentence imposed pursuant  to
    33  subdivision  one of this section must be fixed by the court as follows:]
    34  Where a court would otherwise be required to impose a sentence  pursuant
    35  to section 70.02 of this title, the court may impose a definite sentence
    36  of imprisonment of one year or less, or probation in accordance with the
    37  provisions of section 65.00 of this title, or may fix a determinate term
    38  of imprisonment as follows:
    39    (a)  For  a  class B felony, the term must be at least [six years] one
    40  year and must not exceed [twenty-five] five years;
    41    (b) For a class C felony, the term must be at least [four and one-half
    42  years] one year and must not exceed [fifteen] three and one-half years;
    43    (c) For a class D felony, the term must be at least [three years]  one
    44  year and must not exceed [seven] two years; and
    45    (d)  For a class E felony, the term must be [at least three years] one
    46  year and must not exceed [four] one and one-half years.
    47    3. [The minimum period of imprisonment under an indeterminate sentence
    48  imposed pursuant to subdivision one of this section must be fixed by the
    49  court at one-half of the maximum term imposed and must be  specified  in
    50  the  sentence]  Where  a  court  would otherwise be required to impose a
    51  sentence for a class A felony offense pursuant to section 70.00 of  this
    52  title,  the court may fix a determinate term of imprisonment of at least
    53  five years and not to exceed fifteen years.
    54    4. Where a court would otherwise be required to impose a sentence  for
    55  a  class  A felony offense pursuant to subparagraph (i) of paragraph (b)
    56  of subdivision two of section 70.71 of this title, the court may  fix  a

        A. 4409--B                          3
 
     1  determinate  term  of  imprisonment  of  at  least five years and not to
     2  exceed eight years.
     3    5.  Where a court would otherwise be required to impose a sentence for
     4  a class A felony offense pursuant to subparagraph (i) of  paragraph  (b)
     5  of subdivision three of section 70.71 of this title, the court may fix a
     6  determinate  term  of  imprisonment  of  at  least five years and not to
     7  exceed twelve years.
     8    6. Where a court would otherwise be required to impose a sentence  for
     9  a  class A felony offense pursuant to subparagraph (ii) of paragraph (b)
    10  of subdivision two of section 70.71 of this title, the court may  fix  a
    11  determinate  term of imprisonment of at least one year and not to exceed
    12  three years.
    13    7. Where a court would otherwise be required to impose a sentence  for
    14  a  class A felony offense pursuant to subparagraph (ii) of paragraph (b)
    15  of subdivision three of section 70.71 of this title, the court may fix a
    16  determinate term of imprisonment of at least  three  years  and  not  to
    17  exceed six years.
    18    8.  Where  a  court  would  otherwise be required to impose a sentence
    19  pursuant to subdivision six of section 70.06 of this  title,  the  court
    20  may fix a term of imprisonment as follows:
    21    (a)  For  a  class B felony, the term must be at least three years and
    22  must not exceed eight years;
    23    (b) For a class C felony, the term must be at least two  and  one-half
    24  years and must not exceed five years;
    25    (c) For a class D felony, the term must be at least two years and must
    26  not exceed three years;
    27    (d)  For  a class E felony, the term must be at least one and one-half
    28  years and must not exceed two years.
    29    9. Where a court would otherwise be required to impose a sentence  for
    30  a  class  B,  C, D or E felony offense pursuant to section 70.00 of this
    31  title, the court may impose a sentence in accordance with the provisions
    32  of subdivision two of section 70.70 of this title.
    33    10. Except as provided in subdivision seven of this section,  where  a
    34  court  would  otherwise  be  required  to  impose a sentence pursuant to
    35  subdivision three of section 70.06 of this title, the court may impose a
    36  sentence in accordance with  the  provisions  of  subdivision  three  of
    37  section 70.70 of this title.
    38    11.  Where  a  court  would otherwise be required to impose a sentence
    39  pursuant to subdivision three of section 70.06 of this title, where  the
    40  prior  felony  conviction  was  for  a felony offense defined in section
    41  70.02 of this title, the court may impose a sentence in accordance  with
    42  the provisions of subdivision four of section 70.70 of this title.
    43    §  2.  Paragraphs  (a), (b), (c), (d), (e) and (f) of subdivision 2 of
    44  section 70.45 of the penal law, as amended by chapter 7 of the  laws  of
    45  2007, are amended to read as follows:
    46    (a)  such  period shall be one year whenever a determinate sentence of
    47  imprisonment is imposed pursuant to subdivision two of section 70.70  of
    48  this  article  or subdivision nine of section 60.12 of this title upon a
    49  conviction of a class D or class E felony offense;
    50    (b) such period shall be not less than one  year  nor  more  than  two
    51  years  whenever a determinate sentence of imprisonment is imposed pursu-
    52  ant to subdivision two of section 70.70 of this article  or  subdivision
    53  nine  of  section  60.12 of this title upon a conviction of a class B or
    54  class C felony offense;
    55    (c) such period shall be not less than one  year  nor  more  than  two
    56  years  whenever a determinate sentence of imprisonment is imposed pursu-

        A. 4409--B                          4
 
     1  ant to subdivision three or four of section 70.70 of this  article  upon
     2  conviction  of a class D or class E felony offense or subdivision ten of
     3  section 60.12 of this title;
     4    (d) such period shall be not less than one and one-half years nor more
     5  than  three  years  whenever  a  determinate sentence of imprisonment is
     6  imposed pursuant to subdivision three or four of section 70.70  of  this
     7  article upon conviction of a class B felony or class C felony offense[;]
     8  or subdivision eleven of section 60.12 of this title;
     9    (e) such period shall be not less than one and one-half years nor more
    10  than  three  years  whenever  a  determinate sentence of imprisonment is
    11  imposed pursuant to subdivision three of section 70.02 of  this  article
    12  or  subdivision  two  or  eight  of  section  60.12 of this title upon a
    13  conviction of a class D or class E violent felony offense or subdivision
    14  four, five, six, or seven of section 60.12 of this title;
    15    (f) such period shall be not less than two and one-half years nor more
    16  than five years whenever  a  determinate  sentence  of  imprisonment  is
    17  imposed  pursuant  to subdivision three of section 70.02 of this article
    18  or subdivision two or eight of  section  60.12  of  this  title  upon  a
    19  conviction of a class B or class C violent felony offense.
    20    §  3.  The  criminal  procedure law is amended by adding a new section
    21  440.47 to read as follows:
    22  § 440.47 Motion for resentence; domestic violence cases.
    23    1. (a) Notwithstanding any  contrary  provision  of  law,  any  person
    24  confined  in an institution operated by the department of correction and
    25  community supervision serving a sentence with a minimum  or  determinate
    26  term of eight years or more for an offense committed prior to the effec-
    27  tive  date  of  this  section  and  eligible for an alternative sentence
    28  pursuant to section 60.12 of the penal law may, on or after such  effec-
    29  tive  date,  submit  to  the  judge  or justice who imposed the original
    30  sentence upon such person a request to apply for resentencing in accord-
    31  ance with section 60.12 of the penal law. Such person  must  include  in
    32  his  or  her request documentation proving that she or he is confined in
    33  an institution operated by the department of corrections  and  community
    34  supervision  serving  a  sentence  with a minimum or determinate term of
    35  eight years or more for an offense committed prior to the effective date
    36  of this section and that she or he is  serving  such  sentence  for  any
    37  offense  eligible for an alternative sentence under section 60.12 of the
    38  penal law.
    39    (b) If, at the time of such person's request to apply for resentencing
    40  pursuant to this section, the original sentencing judge or justice is  a
    41  judge or justice of a court of competent jurisdiction, but such court is
    42  not  the  court  in  which  the  original sentence was imposed, then the
    43  request shall be randomly assigned to another judge or  justice  of  the
    44  court  in  which  the  original  sentence  was  imposed. If the original
    45  sentencing judge is no longer a judge or justice of a court of competent
    46  jurisdiction, then the request shall be  randomly  assigned  to  another
    47  judge or justice of the court.
    48    (c)  If  the  court finds that such person has met the requirements to
    49  apply for resentencing in paragraph (a) of this subdivision,  the  court
    50  shall  notify  such  person that he or she may submit an application for
    51  resentencing. Upon such notification, the person may  request  that  the
    52  court  assign  him  or  her  an  attorney  for  the  preparation  of and
    53  proceedings  on  the  application  for  resentencing  pursuant  to  this
    54  section.   The  attorney  shall  be  assigned  in  accordance  with  the
    55  provisions of subdivision one of section  seven  hundred  seventeen  and

        A. 4409--B                          5
 
     1  subdivision  four  of section seven hundred twenty-two of the county law
     2  and the related provisions of article eighteen-A of such law.
     3    (d)  If  the court finds that such person has not met the requirements
     4  to apply for resentencing in paragraph (a) of subdivision  one  of  this
     5  section,  the  court  shall  notify  such  person and dismiss his or her
     6  request without prejudice.
     7    2. (a) Upon the court's receipt of an  application  for  resentencing,
     8  the  court  shall  promptly notify the appropriate district attorney and
     9  provide such district attorney with a copy of the application.
    10    (b) If the judge or justice that received the application is  not  the
    11  original sentencing judge or justice, the application may be referred to
    12  the  original  sentencing  judge or justice provided that he or she is a
    13  judge or justice of a court  of  competent  jurisdiction  and  that  the
    14  applicant and the district attorney agree that the application should be
    15  referred.
    16    (c)  An  application  for  resentencing  pursuant to this section must
    17  include at least two pieces of evidence  corroborating  the  applicant's
    18  claim that he or she was, at the time of the offense, a victim of domes-
    19  tic  violence subjected to substantial physical, sexual or psychological
    20  abuse inflicted by a member of the  same  family  or  household  as  the
    21  applicant  as  such term is defined in subdivision one of section 530.11
    22  of this chapter.
    23    At least one piece of evidence must be either a court record, pre-sen-
    24  tence report, social services record, hospital record,  sworn  statement
    25  from  a witness to the domestic violence, law enforcement record, domes-
    26  tic incident report,  or  order  of  protection.    Other  evidence  may
    27  include,  but  shall  not  be  limited to, local and state department of
    28  corrections records, a showing based in part on  documentation  prepared
    29  at  or near the time of the commission of the offense or the prosecution
    30  thereof tending to support the person's claim, or when there is  verifi-
    31  cation  of  consultation  with  a licensed medical or mental health care
    32  provider, employee of a court acting within the  scope  of  his  or  her
    33  employment,  member  of  the  clergy,  attorney,  social worker, or rape
    34  crisis counselor as defined in section forty-five  hundred  ten  of  the
    35  civil  practice  law and rules, or other advocate acting on behalf of an
    36  agency that assists victims of domestic  violence  for  the  purpose  of
    37  assisting  such  person  with  domestic  violence  victim  counseling or
    38  support.
    39    (d) If the court finds that the applicant has not  complied  with  the
    40  provisions of paragraph (c) of this subdivision, the court shall dismiss
    41  the application without prejudice.
    42    (e)  If  the  court  finds  that  the  applicant has complied with the
    43  provisions of paragraph (c) of this subdivision, the court shall conduct
    44  a hearing to aid in making its determination of  whether  the  applicant
    45  should be resentenced in accordance with section 60.12 of the penal law.
    46  At such hearing the court shall determine any controverted issue of fact
    47  relevant  to the issue of sentencing. Reliable hearsay shall be admissi-
    48  ble at such hearings.
    49    The court may consider any fact or circumstances relevant to the impo-
    50  sition of a new sentence which are submitted by  the  applicant  or  the
    51  district  attorney  and  may,  in  addition,  consider the institutional
    52  record of confinement of such person, but shall not order a new pre-sen-
    53  tence investigation and report or entertain any matter  challenging  the
    54  underlying basis of the subject conviction. The court's consideration of
    55  the institutional record of confinement of such applicant shall include,
    56  but  not be limited to, such applicant's participation in or willingness

        A. 4409--B                          6
 
     1  to participate in programming such as domestic violence,  parenting  and
     2  substance abuse treatment while incarcerated and such applicant's disci-
     3  plinary  history.  The  fact  that the applicant may have been unable to
     4  participate in treatment or other programming while incarcerated despite
     5  such applicant's willingness to do so shall not be considered a negative
     6  factor in determining a motion pursuant to this section.
     7    (f)  If  the  court determines that the applicant should not be resen-
     8  tenced in accordance with section 60.12 of  the  penal  law,  the  court
     9  shall  inform such applicant of its decision and shall enter an order to
    10  that effect. Any order issued by a court pursuant to this  section  must
    11  include written findings of fact and the reasons for such order.
    12    (g)  If  the court determines that the applicant should be resentenced
    13  in accordance with section 60.12 of the penal law, the court shall noti-
    14  fy the applicant that, unless he or she  withdraws  the  application  or
    15  appeals  from  such  order,  the  court will enter an order vacating the
    16  sentence originally imposed and imposing the new sentence to be  imposed
    17  as  authorized  by section 60.12 of the penal law. Any order issued by a
    18  court pursuant to this section must include written findings of fact and
    19  the reasons for such order.
    20    3. An appeal may be taken as of right in  accordance  with  applicable
    21  provisions  of  this chapter: (a) from an order denying resentencing; or
    22  (b) from a new sentence imposed under this provision and may be based on
    23  the grounds that (i) the term of the new sentence is harsh or excessive;
    24  or (ii) that the term of the new sentence is unauthorized as a matter of
    25  law. An appeal in accordance with  the  applicable  provisions  of  this
    26  chapter  may  also  be  taken as of right by the applicant from an order
    27  specifying and informing such applicant of the term of  the  determinate
    28  sentence the court would impose upon resentencing on the ground that the
    29  term  of the proposed sentence is harsh or excessive; upon remand to the
    30  sentencing court following such appeal the applicant shall be  given  an
    31  opportunity  to  withdraw  an  application  for  resentencing before any
    32  resentence is imposed. The applicant may request that the  court  assign
    33  him  or  her  an  attorney for the preparation of and proceedings on any
    34  appeals regarding his or her application for  resentencing  pursuant  to
    35  this  section.  The  attorney  shall  be assigned in accordance with the
    36  provisions of subdivision one of section  seven  hundred  seventeen  and
    37  subdivision  four  of section seven hundred twenty-two of the county law
    38  and the related provisions of article eighteen-A of such law.
    39    4. In calculating the new term to be served by the applicant  pursuant
    40  to  section 60.12 of the penal law, such applicant shall be credited for
    41  any jail time credited towards the subject conviction  as  well  as  any
    42  period of incarceration credited toward the sentence originally imposed.
    43    § 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
    44  amended  by section 10 of part AAA of chapter 56 of the laws of 2009, is
    45  amended to read as follows:
    46    1. Provided that a certificate granting  leave  to  appeal  is  issued
    47  pursuant  to section 460.20, an appeal may, except as provided in subdi-
    48  vision two, be taken to the court of appeals by either the defendant  or
    49  the  people from any adverse or partially adverse order of an intermedi-
    50  ate appellate court entered upon an appeal taken  to  such  intermediate
    51  appellate  court  pursuant to section 450.10, 450.15, or 450.20, or from
    52  an order granting or denying a motion to set aside an order of an inter-
    53  mediate appellate court on  the  ground  of  ineffective  assistance  or
    54  wrongful deprivation of appellate counsel, or by either the defendant or
    55  the  people from any adverse or partially adverse order of an intermedi-
    56  ate appellate court entered upon an appeal taken  to  such  intermediate

        A. 4409--B                          7

     1  appellate  court  from  an  order  entered pursuant to section 440.46 or
     2  section 440.47 of this chapter. An order of  an  intermediate  appellate
     3  court  is  adverse to the party who was the appellant in such court when
     4  it affirms the judgment, sentence or order appealed from, and is adverse
     5  to  the  party who was the respondent in such court when it reverses the
     6  judgment, sentence or order appealed  from.  An  appellate  court  order
     7  which modifies a judgment or order appealed from is partially adverse to
     8  each party.
     9    §  5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
    10  procedure law, as amended by section 5 of part OO of chapter 56  of  the
    11  laws of 2010, is amended to read as follows:
    12    (a)  Not less than one court day prior to sentencing, unless such time
    13  requirement is waived by the parties, the pre-sentence report  or  memo-
    14  randum  shall  be  made  available  by the court for examination and for
    15  copying by the defendant's attorney, the defendant himself, if he has no
    16  attorney, and the prosecutor. In its discretion, the  court  may  except
    17  from disclosure a part or parts of the report or memoranda which are not
    18  relevant to a proper sentence, or a diagnostic opinion which might seri-
    19  ously  disrupt  a  program  of rehabilitation, or sources of information
    20  which have been obtained on a promise of confidentiality, or  any  other
    21  portion  thereof,  disclosure  of  which would not be in the interest of
    22  justice. In all cases where a part or parts of the report  or  memoranda
    23  are  not  disclosed, the court shall state for the record that a part or
    24  parts of the report or memoranda have been excepted and the reasons  for
    25  its  action.  The action of the court excepting information from disclo-
    26  sure shall be subject to appellate review. The pre-sentence report shall
    27  be made available by the court for examination and copying in connection
    28  with any appeal in the case, including an appeal under this subdivision.
    29  Upon written request, the court shall make a  copy  of  the  presentence
    30  report,  other  than a part or parts of the report redacted by the court
    31  pursuant to this paragraph, available to the defendant  for  use  before
    32  the  parole  board  for  release  consideration or an appeal of a parole
    33  board determination or  an  application  for  resentencing  pursuant  to
    34  section  440.46 or 440.47 of this chapter. In his or her written request
    35  to the court the defendant shall affirm that he or  she  anticipates  an
    36  appearance  before the parole board or intends to file an administrative
    37  appeal of a parole board determination or meets the eligibility criteria
    38  for and intends to file a motion for resentencing pursuant to 440.46  of
    39  this  chapter or has received notification from the court which received
    40  his or her request to apply for resentencing pursuant to section  440.47
    41  of  this  chapter  confirming  that  he  or she is eligible to submit an
    42  application for resentencing pursuant to section 440.47 of this chapter.
    43  The court shall respond to the defendant's written request within twenty
    44  days from receipt of the defendant's written request.
    45    § 6. This act shall take effect immediately; provided,  however,  that
    46  sections  one  and two of this act shall apply to offenses committed on,
    47  after and prior to such effective  date  where  the  sentence  for  such
    48  offense has not yet been imposed; provided, further that sections three,
    49  four  and  five of this act shall take effect on the ninetieth day after
    50  it shall have become a law.
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