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S05116 Summary:

BILL NOS05116
 
SAME ASSAME AS A03110
 
SPONSORPERSAUD
 
COSPNSRADDABBO, ALCANTARA, AVELLA, BAILEY, BENJAMIN, BOYLE, BRESLIN, BROOKS, CARLUCCI, COMRIE, DILAN, GIANARIS, HAMILTON, HOYLMAN, KAVANAGH, KENNEDY, KLEIN, KRUEGER, MAYER, MONTGOMERY, PARKER, PERALTA, RIVERA, SANDERS, SAVINO, SEPULVEDA, SERRANO, STAVISKY, STEWART-COUSINS, VALESKY
 
MLTSPNSR
 
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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S05116 Actions:

BILL NOS05116
 
03/08/2017REFERRED TO CODES
01/03/2018REFERRED TO CODES
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S05116 Memo:

Memo not available
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S05116 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5116
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                      March 8, 2017
                                       ___________
 
        Introduced  by  Sen. PERSAUD -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        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]
    15  sections  70.00,  70.02,  70.06  or  subdivision two or three of section
    16  70.71 of this title to impose a [determinate] sentence  of  imprisonment
    17  [for  such offense], the court, upon a determination following a hearing
    18  that (a) at the time of the instant offense, the defendant was  [the]  a
    19  victim of domestic violence subjected to substantial physical, sexual or
    20  psychological  abuse [by the victim or intended victim of such offense,]
    21  inflicted by a member of the same family or household as  the  defendant
    22  as  such  term  is  defined  in subdivision one of section 530.11 of the
    23  criminal procedure law; (b) such abuse was  a  significant  contributing
    24  factor  [in  causing  the  defendant to commit such offense and]  to the
    25  defendant's criminal behavior; (c) [the victim  or  intended  victim  of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08333-01-7

        S. 5116                             2

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

        S. 5116                             3
 
     1  determinate  term of imprisonment of at least one year and not to exceed
     2  three years.
     3    7.  Where a court would otherwise be required to impose a sentence for
     4  a class A felony offense pursuant to subparagraph (ii) 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 three years and not to
     7  exceed six years.
     8    8. Where a court would otherwise be  required  to  impose  a  sentence
     9  pursuant  to  subdivision  six of section 70.06 of this title, the court
    10  may fix a term of imprisonment as follows:
    11    (a) For a class B felony, the term must be at least  three  years  and
    12  must not exceed eight years;
    13    (b)  For  a class C felony, the term must be at least two and one-half
    14  years and must not exceed five years;
    15    (c) For a class D felony, the term must be at least two years and must
    16  not exceed three years;
    17    (d) For a class E felony, the term must be at least one  and  one-half
    18  years and must not exceed two years.
    19    9.  Where a court would otherwise be required to impose a sentence for
    20  a class B, C, D or E felony offense pursuant to section  70.00  of  this
    21  title, the court may impose a sentence in accordance with the provisions
    22  of subdivision two of section 70.70 of this title.
    23    10.  Except  as provided in subdivision seven of this section, where a
    24  court would otherwise be required  to  impose  a  sentence  pursuant  to
    25  subdivision three of section 70.06 of this title, the court may impose a
    26  sentence  in  accordance  with  the  provisions  of subdivision three of
    27  section 70.70 of this title.
    28    11. Where a court would otherwise be required  to  impose  a  sentence
    29  pursuant  to subdivision three of section 70.06 of this title, where the
    30  prior felony conviction was for a  felony  offense  defined  in  section
    31  70.02  of this title, the court may impose a sentence in accordance with
    32  the provisions of subdivision four of section 70.70 of this title.
    33    § 2. Paragraphs (a), (b), (c), (d), (e) and (f) of  subdivision  2  of
    34  section  70.45  of the penal law, as amended by chapter 7 of the laws of
    35  2007, are amended to read as follows:
    36    (a) such period shall be one year whenever a determinate  sentence  of
    37  imprisonment  is imposed pursuant to subdivision two of section 70.70 of
    38  this article or subdivision nine of section 60.12 of this title  upon  a
    39  conviction of a class D or class E felony offense;
    40    (b)  such  period  shall  be  not less than one year nor more than two
    41  years whenever a determinate sentence of imprisonment is imposed  pursu-
    42  ant  to  subdivision two of section 70.70 of this article or subdivision
    43  nine of section 60.12 of this title upon a conviction of a  class  B  or
    44  class C felony offense;
    45    (c)  such  period  shall  be  not less than one year nor more than two
    46  years whenever a determinate sentence of imprisonment is imposed  pursu-
    47  ant  to  subdivision three or four of section 70.70 of this article upon
    48  conviction of a class D or class E felony offense or subdivision ten  of
    49  section 60.12 of this title;
    50    (d) such period shall be not less than one and one-half years nor more
    51  than  three  years  whenever  a  determinate sentence of imprisonment is
    52  imposed pursuant to subdivision three or four of section 70.70  of  this
    53  article upon conviction of a class B felony or class C felony offense[;]
    54  or subdivision eleven of section 60.12 of this title;
    55    (e) such period shall be not less than one and one-half years nor more
    56  than  three  years  whenever  a  determinate sentence of imprisonment is

        S. 5116                             4
 
     1  imposed pursuant to subdivision three of section 70.02 of  this  article
     2  or  subdivision  two  or  eight  of  section  60.12 of this title upon a
     3  conviction of a class D or class E violent felony offense or subdivision
     4  four, five, six, or seven of section 60.12 of this title;
     5    (f) such period shall be not less than two and one-half years nor more
     6  than  five  years  whenever  a  determinate  sentence of imprisonment is
     7  imposed pursuant to subdivision three of section 70.02 of  this  article
     8  or  subdivision  two  or  eight  of  section  60.12 of this title upon a
     9  conviction of a class B or class C violent felony offense.
    10    § 3. The criminal procedure law is amended by  adding  a  new  section
    11  440.47 to read as follows:
    12  § 440.47 Motion for resentence; domestic violence cases.
    13    1.  (a)  Notwithstanding  any  contrary  provision  of law, any person
    14  confined in an institution operated by the department of correction  and
    15  community  supervision  serving a sentence with a minimum or determinate
    16  term of eight years or more for an offense committed prior to the effec-
    17  tive date of this section  and  eligible  for  an  alternative  sentence
    18  pursuant  to section 60.12 of the penal law may, on or after such effec-
    19  tive date, submit to the judge  or  justice  who  imposed  the  original
    20  sentence upon such person a request to apply for resentencing in accord-
    21  ance  with  section  60.12 of the penal law. Such person must include in
    22  his or her request documentation proving that she or he is  confined  in
    23  an  institution  operated by the department of corrections and community
    24  supervision serving a sentence with a minimum  or  determinate  term  of
    25  eight years or more for an offense committed prior to the effective date
    26  of  this  section  and  that  she or he is serving such sentence for any
    27  offense eligible for an alternative sentence under section 60.12 of  the
    28  penal law.
    29    (b) If, at the time of such person's request to apply for resentencing
    30  pursuant  to this section, the original sentencing judge or justice is a
    31  judge or justice of a court of competent jurisdiction, but such court is
    32  not the court in which the  original  sentence  was  imposed,  then  the
    33  request  shall  be  randomly assigned to another judge or justice of the
    34  court in which the  original  sentence  was  imposed.  If  the  original
    35  sentencing judge is no longer a judge or justice of a court of competent
    36  jurisdiction,  then  the  request  shall be randomly assigned to another
    37  judge or justice of the court.
    38    (c) If the court finds that such person has met  the  requirements  to
    39  apply  for  resentencing in paragraph (a) of this subdivision, the court
    40  shall notify such person that he or she may submit  an  application  for
    41  resentencing.  Upon  such  notification, the person may request that the
    42  court assign  him  or  her  an  attorney  for  the  preparation  of  and
    43  proceedings  on  the  application  for  resentencing  pursuant  to  this
    44  section.  The  attorney  shall  be  assigned  in  accordance  with   the
    45  provisions  of  subdivision  one  of section seven hundred seventeen and
    46  subdivision four of section seven hundred twenty-two of the  county  law
    47  and the related provisions of article eighteen-A of such law.
    48    (d)  If  the court finds that such person has not met the requirements
    49  to apply for resentencing in paragraph (a) of subdivision  one  of  this
    50  section,  the  court  shall  notify  such  person and dismiss his or her
    51  request without prejudice.
    52    2. (a) Upon the court's receipt of an  application  for  resentencing,
    53  the  court  shall  promptly notify the appropriate district attorney and
    54  provide such district attorney with a copy of the application.
    55    (b) If the judge or justice that received the application is  not  the
    56  original sentencing judge or justice, the application may be referred to

        S. 5116                             5
 
     1  the  original  sentencing  judge or justice provided that he or she is a
     2  judge or justice of a court  of  competent  jurisdiction  and  that  the
     3  applicant and the district attorney agree that the application should be
     4  referred.
     5    (c)  An  application  for  resentencing  pursuant to this section must
     6  include at least two pieces of evidence  corroborating  the  applicant's
     7  claim that he or she was, at the time of the offense, a victim of domes-
     8  tic  violence subjected to substantial physical, sexual or psychological
     9  abuse inflicted by a member of the  same  family  or  household  as  the
    10  applicant  as  such term is defined in subdivision one of section 530.11
    11  of this chapter.
    12    At least one piece of evidence must be either a court record, pre-sen-
    13  tence report, social services record, hospital record,  sworn  statement
    14  from  a witness to the domestic violence, law enforcement record, domes-
    15  tic incident report,  or  order  of  protection.    Other  evidence  may
    16  include,  but  shall  not  be  limited to, local and state department of
    17  corrections records, a showing based in part on  documentation  prepared
    18  at  or near the time of the commission of the offense or the prosecution
    19  thereof tending to support the person's claim, or when there is  verifi-
    20  cation  of  consultation  with  a licensed medical or mental health care
    21  provider, employee of a court acting within the  scope  of  his  or  her
    22  employment,  member  of  the  clergy,  attorney,  social worker, or rape
    23  crisis counselor as defined in section forty-five  hundred  ten  of  the
    24  civil  practice  law and rules, or other advocate acting on behalf of an
    25  agency that assists victims of domestic  violence  for  the  purpose  of
    26  assisting  such  person  with  domestic  violence  victim  counseling or
    27  support.
    28    (d) If the court finds that the applicant has not  complied  with  the
    29  provisions of paragraph (c) of this subdivision, the court shall dismiss
    30  the application without prejudice.
    31    (e)  If  the  court  finds  that  the  applicant has complied with the
    32  provisions of paragraph (c) of this subdivision, the court shall conduct
    33  a hearing to aid in making its determination of  whether  the  applicant
    34  should be resentenced in accordance with section 60.12 of the penal law.
    35  At such hearing the court shall determine any controverted issue of fact
    36  relevant  to the issue of sentencing. Reliable hearsay shall be admissi-
    37  ble at such hearings.
    38    The court may consider any fact or circumstances relevant to the impo-
    39  sition of a new sentence which are submitted by  the  applicant  or  the
    40  district  attorney  and  may,  in  addition,  consider the institutional
    41  record of confinement of such person, but shall not order a new pre-sen-
    42  tence investigation and report or entertain any matter  challenging  the
    43  underlying basis of the subject conviction. The court's consideration of
    44  the institutional record of confinement of such applicant shall include,
    45  but  not be limited to, such applicant's participation in or willingness
    46  to participate in programming such as domestic violence,  parenting  and
    47  substance abuse treatment while incarcerated and such applicant's disci-
    48  plinary  history.  The  fact  that the applicant may have been unable to
    49  participate in treatment or other programming while incarcerated despite
    50  such applicant's willingness to do so shall not be considered a negative
    51  factor in determining a motion pursuant to this section.
    52    (f) If the court determines that the applicant should  not  be  resen-
    53  tenced  in  accordance  with  section  60.12 of the penal law, the court
    54  shall inform such applicant of its decision and shall enter an order  to
    55  that  effect.  Any order issued by a court pursuant to this section must
    56  include written findings of fact and the reasons for such order.

        S. 5116                             6
 
     1    (g) If the court determines that the applicant should  be  resentenced
     2  in accordance with section 60.12 of the penal law, the court shall noti-
     3  fy  the  applicant  that,  unless he or she withdraws the application or
     4  appeals from such order, the court will  enter  an  order  vacating  the
     5  sentence  originally imposed and imposing the new sentence to be imposed
     6  as authorized by section 60.12 of the penal law. Any order issued  by  a
     7  court pursuant to this section must include written findings of fact and
     8  the reasons for such order.
     9    3.  An  appeal  may be taken as of right in accordance with applicable
    10  provisions of this chapter: (a) from an order denying  resentencing;  or
    11  (b) from a new sentence imposed under this provision and may be based on
    12  the grounds that (i) the term of the new sentence is harsh or excessive;
    13  or (ii) that the term of the new sentence is unauthorized as a matter of
    14  law.  An  appeal  in  accordance  with the applicable provisions of this
    15  chapter may also be taken as of right by the  applicant  from  an  order
    16  specifying  and  informing such applicant of the term of the determinate
    17  sentence the court would impose upon resentencing on the ground that the
    18  term of the proposed sentence is harsh or excessive; upon remand to  the
    19  sentencing  court  following such appeal the applicant shall be given an
    20  opportunity to withdraw  an  application  for  resentencing  before  any
    21  resentence  is  imposed. The applicant may request that the court assign
    22  him or her an attorney for the preparation of  and  proceedings  on  any
    23  appeals  regarding  his  or her application for resentencing pursuant to
    24  this section. The attorney shall be  assigned  in  accordance  with  the
    25  provisions  of  subdivision  one  of section seven hundred seventeen and
    26  subdivision four of section seven hundred twenty-two of the  county  law
    27  and the related provisions of article eighteen-A of such law.
    28    4.  In calculating the new term to be served by the applicant pursuant
    29  to section 60.12 of the penal law, such applicant shall be credited  for
    30  any  jail  time  credited  towards the subject conviction as well as any
    31  period of incarceration credited toward the sentence originally imposed.
    32    § 4. Subdivision 1 of section 450.90 of the criminal procedure law, as
    33  amended by section 10 of part AAA of chapter 56 of the laws of 2009,  is
    34  amended to read as follows:
    35    1.  Provided  that  a  certificate  granting leave to appeal is issued
    36  pursuant to section 460.20, an appeal may, except as provided in  subdi-
    37  vision  two, be taken to the court of appeals by either the defendant or
    38  the people from any adverse or partially adverse order of an  intermedi-
    39  ate  appellate  court  entered upon an appeal taken to such intermediate
    40  appellate court pursuant to section 450.10, 450.15, or 450.20,  or  from
    41  an order granting or denying a motion to set aside an order of an inter-
    42  mediate  appellate  court  on  the  ground  of ineffective assistance or
    43  wrongful deprivation of appellate counsel, or by either the defendant or
    44  the people from any adverse or partially adverse order of an  intermedi-
    45  ate  appellate  court  entered upon an appeal taken to such intermediate
    46  appellate court from an order entered  pursuant  to  section  440.46  or
    47  section  440.47  of  this chapter. An order of an intermediate appellate
    48  court is adverse to the party who was the appellant in such  court  when
    49  it affirms the judgment, sentence or order appealed from, and is adverse
    50  to  the  party who was the respondent in such court when it reverses the
    51  judgment, sentence or order appealed  from.  An  appellate  court  order
    52  which modifies a judgment or order appealed from is partially adverse to
    53  each party.
    54    §  5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal
    55  procedure law, as amended by section 5 of part OO of chapter 56  of  the
    56  laws of 2010, is amended to read as follows:

        S. 5116                             7
 
     1    (a)  Not less than one court day prior to sentencing, unless such time
     2  requirement is waived by the parties, the pre-sentence report  or  memo-
     3  randum  shall  be  made  available  by the court for examination and for
     4  copying by the defendant's attorney, the defendant himself, if he has no
     5  attorney,  and  the  prosecutor. In its discretion, the court may except
     6  from disclosure a part or parts of the report or memoranda which are not
     7  relevant to a proper sentence, or a diagnostic opinion which might seri-
     8  ously disrupt a program of rehabilitation,  or  sources  of  information
     9  which  have  been obtained on a promise of confidentiality, or any other
    10  portion thereof, disclosure of which would not be  in  the  interest  of
    11  justice.  In  all cases where a part or parts of the report or memoranda
    12  are not disclosed, the court shall state for the record that a  part  or
    13  parts  of the report or memoranda have been excepted and the reasons for
    14  its action. The action of the court excepting information  from  disclo-
    15  sure shall be subject to appellate review. The pre-sentence report shall
    16  be made available by the court for examination and copying in connection
    17  with any appeal in the case, including an appeal under this subdivision.
    18  Upon  written  request,  the  court shall make a copy of the presentence
    19  report, other than a part or parts of the report redacted by  the  court
    20  pursuant  to  this  paragraph, available to the defendant for use before
    21  the parole board for release consideration or  an  appeal  of  a  parole
    22  board  determination  or  an  application  for  resentencing pursuant to
    23  section 440.46 or 440.47 of this chapter. In his or her written  request
    24  to  the  court  the defendant shall affirm that he or she anticipates an
    25  appearance before the parole board or intends to file an  administrative
    26  appeal of a parole board determination or meets the eligibility criteria
    27  for  and intends to file a motion for resentencing pursuant to 440.46 of
    28  this chapter or has received notification from the court which  received
    29  his  or her request to apply for resentencing pursuant to section 440.47
    30  of this chapter confirming that he or  she  is  eligible  to  submit  an
    31  application for resentencing pursuant to section 440.47 of this chapter.
    32  The court shall respond to the defendant's written request within twenty
    33  days from receipt of the defendant's written request.
    34    §  6.  This act shall take effect immediately; provided, however, that
    35  sections one and two of this act shall apply to offenses  committed  on,
    36  after  and  prior  to  such  effective  date where the sentence for such
    37  offense has not yet been imposed; provided, further that sections three,
    38  four and five of this act shall take effect on the ninetieth  day  after
    39  it shall have become a law.
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