N.Y. Criminal Procedure Law § 440.47: Motion for resentence; domestic violence cases

§ 440.47 Motion for resentence; domestic violence cases.

1. (a) Notwithstanding any contrary provision of law, any person

confined in an institution operated by the department of correction and

community supervision serving a sentence with a minimum or determinate

term of eight years or more for an offense committed prior to the

effective date of this section and eligible for an alternative sentence

pursuant to section 60.12 of the penal law may, on or after such

effective date, submit to the judge or justice who imposed the original

sentence upon such person a request to apply for resentencing in

accordance with section 60.12 of the penal law. Such person must include

in his or her request documentation proving that she or he is confined

in an institution operated by the department of corrections and

community supervision serving a sentence with a minimum or determinate

term of eight years or more for an offense committed prior to the

effective date of this section and that she or he is serving such

sentence for any offense eligible for an alternative sentence under

section 60.12 of the penal law.

(b) If, at the time of such person's request to apply for resentencing

pursuant to this section, the original sentencing judge or justice is a

judge or justice of a court of competent jurisdiction, but such court is

not the court in which the original sentence was imposed, then the

request shall be randomly assigned to another judge or justice of the

court in which the original sentence was imposed. If the original

sentencing judge is no longer a judge or justice of a court of competent

jurisdiction, then the request shall be randomly assigned to another

judge or justice of the court.

(c) If the court finds that such person has met the requirements to

apply for resentencing in paragraph (a) of this subdivision, the court

shall notify such person that he or she may submit an application for

resentencing. Upon such notification, the person may request that the

court assign him or her an attorney for the preparation of and

proceedings on the application for resentencing pursuant to this

section. The attorney shall be assigned in accordance with the

provisions of subdivision one of section seven hundred seventeen and

subdivision four of section seven hundred twenty-two of the county law

and the related provisions of article eighteen-A of such law.

(d) If the court finds that such person has not met the requirements

to apply for resentencing in paragraph (a) of subdivision one of this

section, the court shall notify such person and dismiss his or her

request without prejudice.

2. (a) Upon the court's receipt of an application for resentencing,

the court shall promptly notify the appropriate district attorney and

provide such district attorney with a copy of the application.

(b) If the judge or justice that received the application is not the

original sentencing judge or justice, the application may be referred to

the original sentencing judge or justice provided that he or she is a

judge or justice of a court of competent jurisdiction and that the

applicant and the district attorney agree that the application should be

referred.

(c) An application for resentencing pursuant to this section must

include at least two pieces of evidence corroborating the applicant's

claim that he or she was, at the time of the offense, a victim of

domestic violence subjected to substantial physical, sexual or

psychological abuse inflicted by a member of the same family or

household as the applicant as such term is defined in subdivision one of

section 530.11 of this chapter.

At least one piece of evidence must be either a court record,

pre-sentence report, social services record, hospital record, sworn

statement from a witness to the domestic violence, law enforcement

record, domestic incident report, or order of protection. Other evidence

may include, but shall not be limited to, local and state department of

corrections records, a showing based in part on documentation prepared

at or near the time of the commission of the offense or the prosecution

thereof tending to support the person's claim, or when there is

verification of consultation with a licensed medical or mental health

care provider, employee of a court acting within the scope of his or her

employment, member of the clergy, attorney, social worker, or rape

crisis counselor as defined in section forty-five hundred ten of the

civil practice law and rules, or other advocate acting on behalf of an

agency that assists victims of domestic violence for the purpose of

assisting such person with domestic violence victim counseling or

support.

(d) If the court finds that the applicant has not complied with the

provisions of paragraph (c) of this subdivision, the court shall dismiss

the application without prejudice.

(e) If the court finds that the applicant has complied with the

provisions of paragraph (c) of this subdivision, the court shall conduct

a hearing to aid in making its determination of whether the applicant

should be resentenced in accordance with section 60.12 of the penal law.

At such hearing the court shall determine any controverted issue of fact

relevant to the issue of sentencing. Reliable hearsay shall be

admissible at such hearings.

The court may consider any fact or circumstances relevant to the

imposition of a new sentence which are submitted by the applicant or the

district attorney and may, in addition, consider the institutional

record of confinement of such person, but shall not order a new

pre-sentence investigation and report or entertain any matter

challenging the underlying basis of the subject conviction. The court's

consideration of the institutional record of confinement of such

applicant shall include, but not be limited to, such applicant's

participation in or willingness to participate in programming such as

domestic violence, parenting and substance abuse treatment while

incarcerated and such applicant's disciplinary history. The fact that

the applicant may have been unable to participate in treatment or other

programming while incarcerated despite such applicant's willingness to

do so shall not be considered a negative factor in determining a motion

pursuant to this section.

(f) If the court determines that the applicant should not be

resentenced in accordance with section 60.12 of the penal law, the court

shall inform such applicant of its decision and shall enter an order to

that effect. Any order issued by a court pursuant to this section must

include written findings of fact and the reasons for such order.

(g) If the court determines that the applicant should be resentenced

in accordance with section 60.12 of the penal law, the court shall

notify the applicant that, unless he or she withdraws the application or

appeals from such order, the court will enter an order vacating the

sentence originally imposed and imposing the new sentence to be imposed

as authorized by section 60.12 of the penal law. Any order issued by a

court pursuant to this section must include written findings of fact and

the reasons for such order.

3. An appeal may be taken as of right in accordance with applicable

provisions of this chapter: (a) from an order denying resentencing; or

(b) from a new sentence imposed under this provision and may be based on

the grounds that (i) the term of the new sentence is harsh or excessive;

or (ii) that the term of the new sentence is unauthorized as a matter of

law. An appeal in accordance with the applicable provisions of this

chapter may also be taken as of right by the applicant from an order

specifying and informing such applicant of the term of the determinate

sentence the court would impose upon resentencing on the ground that the

term of the proposed sentence is harsh or excessive; upon remand to the

sentencing court following such appeal the applicant shall be given an

opportunity to withdraw an application for resentencing before any

resentence is imposed. The applicant may request that the court assign

him or her an attorney for the preparation of and proceedings on any

appeals regarding his or her application for resentencing pursuant to

this section. The attorney shall be assigned in accordance with the

provisions of subdivision one of section seven hundred seventeen and

subdivision four of section seven hundred twenty-two of the county law

and the related provisions of article eighteen-A of such law.

4. In calculating the new term to be served by the applicant pursuant

to section 60.12 of the penal law, such applicant shall be credited for

any jail time credited towards the subject conviction as well as any

period of incarceration credited toward the sentence originally imposed.