N.Y. Criminal Procedure Law § 440.46-a: Motion for resentence; persons convicted of certain marihuana offenses

§ 440.46-a Motion for resentence; persons convicted of certain marihuana

offenses.

1. When a person is serving a sentence for a conviction in this state,

whether by trial verdict or guilty plea, under former article two

hundred twenty-one of the penal law, and such persons' conduct as

alleged in the accusatory instrument and/or shown by the guilty plea or

trial verdict would not have been a crime under article two hundred

twenty-two of the penal law, had such article two hundred twenty-two

rather than former article two hundred twenty-one of the penal law been

in effect at the time of such conduct, then the chief administrative

judge of the state of New York shall, in accordance with this section,

automatically vacate, dismiss and expunge such conviction in accordance

with section 160.50 of this chapter, and the office of court

administration shall immediately notify the state division of criminal

justice services, state department of corrections and community

supervision and the appropriate local correctional facility which shall

immediately effectuate the appropriate relief. Such notification to the

division of criminal justice services shall also direct that such agency

notify all relevant police and law enforcement agencies of their duty to

destroy and/or mark records related to such case in accordance with

section 160.50 of this chapter. Nothing in this section shall prevent a

person who believes his or her sentence is required by this section to

be vacated, dismissed and/or expunged from filing a petition with the

court to effectuate all appropriate relief.

2. (a) When a person is serving or has completed serving a sentence

for a conviction in this state, whether by trial verdict or guilty plea,

under former article two hundred twenty-one of the penal law, and such

person's conduct as alleged in the accusatory instrument and/or shown by

the guilty plea or trial verdict, or shown by other information: (i)

would not have been a crime under article two hundred twenty-two of the

penal law, had such article two hundred twenty-two rather than former

article two hundred twenty-one of the penal law been in effect at the

time of such conduct; or (ii) under such circumstances such person would

have been guilty of a lesser or potentially less onerous offense under

such article two hundred twenty-two than such former article two hundred

twenty-one of the penal law; then such person may petition the court of

conviction pursuant to this article for vacatur of such conviction.

(b) (i) Upon receiving a served and filed motion under paragraph (a)

of this subdivision, the court shall presume that any conviction by plea

was not knowing, voluntary and intelligent and that any conviction by

verdict and any accompanying sentence constitutes cruel and unusual

punishment under the state constitution if either has severe or ongoing

consequences, including but not limited to potential or actual

immigration consequences; and the court shall further presume that the

movant satisfies the criteria in such paragraph (a) and thereupon make

such finding and grant the motion to vacate such conviction on such

grounds in a written order unless the party opposing the motion proves,

by clear and convincing evidence, that the movant does not satisfy the

criteria to bring such motion.

(ii) If the petition meets the criteria in subparagraph (ii) of

paragraph (a) of this subdivision, the court after affording the parties

an opportunity to be heard and present evidence, may substitute, unless

it is not in the interests of justice to do so, a conviction for an

appropriate lesser offense under article two hundred twenty-two of the

penal law.

(c) In the event of any vacatur and/or substitution pursuant to this

subdivision, the office of court administration shall immediately notify

the state division of criminal justice services concerning such

determination. Such notification to the division of criminal justice

services shall also direct that such agency notify all relevant police

and law enforcement agencies of their duty to destroy and/or mark

records related to such case in accordance with section 160.50 of this

chapter or, where conviction for a crime is substituted pursuant to this

subdivision, update such agencies' records accordingly.

3. Under no circumstances may substitution under this section result

in the imposition of a term of imprisonment or sentencing term,

obligation or condition that is in any way either harsher than the

original sentence or harsher than the sentence authorized for any

substituted lesser offense.

4. (a) If the judge who originally sentenced the movant for such

offense is not reasonably available, then the presiding judge for such

court shall designate another judge authorized to act in the appropriate

jurisdiction to determine the petition or application.

(b) Unless requested by the movant, no hearing is necessary to grant

an application filed under subdivision two of this section.

(c) When a felony conviction is vacated pursuant to this section and a

lesser offense that is a misdemeanor or violation is substituted for

such conviction, such lesser offense shall be considered a misdemeanor

or violation, as the case may be, for all purposes. When a misdemeanor

conviction is vacated pursuant to this section and a lesser offense that

is a violation is substituted for such conviction, such lesser offense

shall be considered a violation for all purposes.

(d) Nothing in this section is intended to or shall diminish or

abrogate any rights or remedies otherwise available to a defendant,

petitioner or applicant. Relief under this section is available

notwithstanding that the judgment was for a violation of former sections

221.05, 221.10, 221.15, 221.20, 221.35 or 221.40 of the penal law in

effect prior to the effective date of this paragraph and that the

underlying action or proceeding has already been vacated, dismissed and

expunged.

(e) Nothing in this and related sections of law is intended to

diminish or abrogate the finality of judgments in any case not falling

within the purview of this section.

(f) The provisions of this section shall be available, used and

applied in parallel fashion by the family court and the criminal courts

to juvenile delinquency adjudications, adolescent offender adjudications

and youthful offender adjudications.

(g) The chief administrator of the courts shall promulgate all

necessary rules and make available all necessary forms to enable the

filing of the petitions and applications provided in this section no

later than sixty days following the effective date of this section. All

sentences eligible for automatic vacatur, dismissal and expungement

pursuant to subdivision one of this section shall be identified and the

required entities notified within one year of the effective date of this

section.