N.Y. Correction Law § 601-d: Post-release supervision; certain cases

§ 601-d. Post-release supervision; certain cases. This section shall

apply only to incarcerated individuals in the custody of the

commissioner, and releasees under the supervision of the department,

upon whom a determinate sentence was imposed between September first,

nineteen hundred ninety-eight, and the effective date of this section,

which was required by law to include a term of post-release supervision:

1. For purposes of this section, such a person shall be deemed a

"designated person" if the commitment order that accompanied such person

does not indicate imposition of any term of post-release supervision;

provided, however, that if such agency with custody of or supervision

over such person has the sentencing minutes that show that a term of

post-release supervision was actually pronounced at sentence, such

person shall not be deemed a designated person.

2. Whenever it shall appear to the satisfaction of the department that

an incarcerated individual in its custody or that a releasee under its

supervision, is a designated person, the department shall make

notification of that fact to the court that sentenced such person, and

to the incarcerated individual or releasee.

3. If a sentencing court that has received such notice, after

reviewing the sentencing minutes, if available, is or becomes aware that

a term of post-release supervision was in fact pronounced at the prior

sentencing of such person, it shall issue a superseding commitment order

reflecting that fact, accompanied by a written explanation of the basis

for that conclusion, and send such order and explanation to the

department, to the defendant, and to the attorney who appeared for the

defendant in connection with the judgment or sentence or, if the

defendant is currently represented concerning his or her conviction or

sentence or with respect to an appeal from his or her sentence, such

present counsel.

4. (a) If the sentencing court shall not have issued a superseding

commitment order, reflecting imposition of a term of post-release

supervision, within ten days after receiving notice pursuant to

subdivision two of this section, then the sentencing court shall appoint

counsel pursuant to section seven hundred twenty-two of the county law,

provide a copy of the notice pursuant to subdivision two of this section

to such counsel, and calendar such person for a court appearance which

shall occur no later than twenty days after receipt of said notice. At

such court appearance, the court shall furnish a copy of such notice and

the proceeding date pursuant to paragraph (c) of this subdivision to the

district attorney, the designated person, assigned counsel and the

department.

(b) The court shall promptly seek to obtain sentencing minutes, plea

minutes and any other records and shall provide copies to the parties

and conduct any reconstruction proceedings that may be necessary to

determine whether to resentence such person.

(c) The court shall commence a proceeding to consider resentence no

later than thirty days after receiving notice pursuant to subdivision

two of this section.

(d) The court shall, no later than forty days after receipt of such

notice, issue and enter a written determination and order, copies of

which shall be immediately provided to the district attorney, the

designated person, his or her counsel and the department along with any

sentencing minutes pursuant to section 380.70 of the criminal procedure

law.

(e) The designated person may, with counsel, knowingly consent to

extend the time periods specified in paragraphs (c) and (d) of this

subdivision. The people may apply to the court for an extension of ten

days on the basis of extraordinary circumstances that preclude final

resolution within such period of the question of whether the defendant

will be resentenced. The department shall be notified by the court of

any such extension.

5. The court shall promptly notify the agency that referred a

designated person whenever it (a) resentences the defendant to a

sentence that includes a term of post-release supervision; or (b)

determines that it will not resentence the defendant under this section

or otherwise. Upon the conclusion of the proceeding, the court shall

furnish the parties and the agency that referred the designated person

with an accurate copy of the current order of commitment for the person.

6. In any case in which the department notifies the court of a

designated person, and has not been informed that the court has made a

determination in accordance with paragraph (d) of subdivision four of

this section (unless extended pursuant to paragraph (e) of such

subdivision), the department may notify the court that it has not

received a determination and, in any event, shall adjust its records

with respect to post-release supervision noting that the court has not,

in accordance with subdivision four of this section, imposed a sentence

of post-release supervision.

7. When the department complies with this section as to a person

confined in state prison, it need not separately follow the procedures

set forth in section six hundred one-a of this article.

8. Nothing in this section shall affect the power of any court to

hear, consider and decide any petition, motion or proceeding pursuant to

article four hundred forty of the criminal procedure law, article

seventy or seventy-eight of the civil practice law and rules, or any

authorized proceeding.