Bill Text: NY A05964 | 2019-2020 | General Assembly | Introduced

---

Bill Title: Reduces certain sentences of imprisonment for misdemeanors to three hundred sixty-four days.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2020-07-06 - enacting clause stricken [A05964 Detail]

Download: New_York-2019-A05964-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________
                                          5964
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 20, 2019
                                       ___________
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on Codes
        AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
          relation to reducing certain sentences of imprisonment  for  misdemea-
          nors to three hundred sixty-four days
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subdivisions 1 and 3 of section 70.15  of  the  penal  law,
     2  subdivision 1 as amended by chapter 291 of the laws of 1993, are amended
     3  to read as follows:
     4    1.  Class  A  misdemeanor.  A  sentence  of imprisonment for a class A
     5  misdemeanor shall be a  definite  sentence.  When  such  a  sentence  is
     6  imposed  the term shall be fixed by the court, and shall not exceed [one
     7  year; provided, however, that a sentence of imprisonment imposed upon  a
     8  conviction  of  criminal  possession of a weapon in the fourth degree as
     9  defined in subdivision one of section 265.01 must be for a period of  no
    10  less than one year when the conviction was the result of a plea of guil-
    11  ty  entered in satisfaction of an indictment or any count thereof charg-
    12  ing the defendant with the class D violent felony  offense  of  criminal
    13  possession  of  a  weapon  in the third degree as defined in subdivision
    14  four of section 265.02, except that  the  court  may  impose  any  other
    15  sentence  authorized  by  law  upon a person who has not been previously
    16  convicted in the five years immediately preceding the commission of  the
    17  offense  for  a felony or a class A misdemeanor defined in this chapter,
    18  if the court having regard to the nature and circumstances of the  crime
    19  and  to  the history and character of the defendant, finds on the record
    20  that such sentence would  be  unduly  harsh  and  that  the  alternative
    21  sentence  would  be consistent with public safety and does not deprecate
    22  the seriousness of the crime] three hundred sixty-four days.
    23    3. Unclassified misdemeanor. A sentence of imprisonment for an unclas-
    24  sified misdemeanor shall be a definite sentence. When such a sentence is
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05291-07-9
        A. 5964                             2
     1  imposed the term shall be fixed by the court, and shall be in accordance
     2  with the sentence specified in the law or  ordinance  that  defines  the
     3  crime  but,  in  any event, it shall not exceed three hundred sixty-four
     4  days.
     5    §  2. Section 70.15 of the penal law is amended by adding a new subdi-
     6  vision 1-a to read as follows:
     7    1-a. (a) Notwithstanding the provisions of any other law, whenever the
     8  phrase "one year" or "three hundred sixty-five days" or  "365  days"  or
     9  any similar phrase appears in any provision of this chapter or any other
    10  law  in  reference to the definite sentence or maximum definite sentence
    11  of imprisonment that is imposed, or has been imposed, or may be  imposed
    12  after  enactment  of  this  subdivision, for a misdemeanor conviction in
    13  this state, such phrase shall mean, be interpreted  and  be  applied  as
    14  three hundred sixty-four days.
    15    (b) The amendatory provisions of this subdivision are ameliorative and
    16  shall  apply  to  all  persons who are sentenced before, on or after the
    17  effective date of this subdivision, for a crime committed before, on  or
    18  after the effective date of this subdivision.
    19    (c)  Any  sentence  for  a misdemeanor conviction imposed prior to the
    20  effective date of this subdivision that is a definite sentence of impri-
    21  sonment of one year, or three hundred sixty-five days, shall, by  opera-
    22  tion  of  law,  be  changed to, mean and be interpreted and applied as a
    23  sentence of three hundred sixty-four days.  In  addition  to  any  other
    24  right of a person to obtain a record of a proceeding against him or her,
    25  a  person  so  sentenced prior to the effective date of this subdivision
    26  shall be entitled to obtain, from the criminal court or the clerk there-
    27  of, a certificate of conviction, as  described  in  subdivision  one  of
    28  section 60.60 of the criminal procedure law, setting forth such sentence
    29  as the sentence specified in this paragraph.
    30    (d)  Any  sentence  for  a misdemeanor conviction imposed prior to the
    31  effective date of  this  subdivision  that  is  other  than  a  definite
    32  sentence  of  imprisonment  of one year may be set aside, upon motion of
    33  the defendant under section 440.20 of the criminal procedure  law  based
    34  on  a  showing that the judgment and sentence under the law in effect at
    35  the time of conviction imposed prior  to  the  effective  date  of  this
    36  subdivision  is  likely  to result in severe collateral consequences, in
    37  order to permit the court to resentence the defendant in accordance with
    38  the amendatory provisions of this subdivision.
    39    (e) Resentence by operation of law is without prejudice to an individ-
    40  ual seeking further relief pursuant to paragraph (i) of subdivision  one
    41  of section 440.10 of the criminal procedure law. Nothing in this section
    42  is  intended  to  diminish  or abrogate any rights or remedies otherwise
    43  available to the individual.
    44    § 3. Paragraph (i) of subdivision 1 of section 440.10 of the  criminal
    45  procedure  law, as amended by chapter 368 of the laws of 2015, the open-
    46  ing paragraph as amended by chapter 189 of the laws of 2018, is  amended
    47  and a new paragraph (j) is added to read as follows:
    48    (i)  The judgment is a conviction where the arresting charge was under
    49  section 240.37 (loitering for the purpose of engaging in a  prostitution
    50  offense, provided that the defendant was not alleged to be loitering for
    51  the  purpose of patronizing a person for prostitution or promoting pros-
    52  titution) or 230.00 (prostitution) or 230.03 (prostitution in  a  school
    53  zone) of the penal law, and the defendant's participation in the offense
    54  was  a  result  of having been a victim of sex trafficking under section
    55  230.34 of the penal law,  sex  trafficking  of  a  child  under  section
    56  230.34-a of the penal law, labor trafficking under section 135.35 of the
        A. 5964                             3
     1  penal  law,  aggravated  labor  trafficking  under section 135.37 of the
     2  penal law, compelling prostitution under section  230.33  of  the  penal
     3  law,  or trafficking in persons under the Trafficking Victims Protection
     4  Act (United States Code, title 22, chapter 78); provided that
     5    (i)  a  motion  under this paragraph shall be made with due diligence,
     6  after the defendant has ceased to be a victim  of  such  trafficking  or
     7  compelling prostitution crime or has sought services for victims of such
     8  trafficking  or  compelling  prostitution  crime,  subject to reasonable
     9  concerns for the safety of the defendant, family members of the  defend-
    10  ant,  or  other  victims  of such trafficking or compelling prostitution
    11  crime that may be jeopardized by the bringing of  such  motion,  or  for
    12  other reasons consistent with the purpose of this paragraph; and
    13    (ii)  official  documentation of the defendant's status as a victim of
    14  trafficking, compelling prostitution or trafficking in  persons  at  the
    15  time  of  the  offense  from a federal, state or local government agency
    16  shall create a presumption that the  defendant's  participation  in  the
    17  offense was a result of having been a victim of sex trafficking, compel-
    18  ling  prostitution  or trafficking in persons, but shall not be required
    19  for granting a motion under this paragraph[.]; or
    20    (j) The judgment is a conviction for a class A or unclassified  misde-
    21  meanor  entered prior to the effective date of this paragraph and satis-
    22  fies the ground prescribed in paragraph (h) of this subdivision.   There
    23  shall  be  a rebuttable presumption that a conviction by plea to such an
    24  offense was not knowing and voluntary, based on severe or ongoing colla-
    25  teral consequences, including potential  or  actual  immigration  conse-
    26  quences,  and  there shall be a rebuttable presumption that a conviction
    27  by verdict constitutes cruel and unusual punishment under  section  five
    28  of article one of the state constitution based on such consequences.
    29    § 4. Section 440.10 of the criminal procedure law is amended by adding
    30  a new subdivision 9 to read as follows:
    31    9. Upon granting of such a motion, the court may either:
    32    (a)  With the consent of the people, vacate the judgment or modify the
    33  judgment by reducing it to one of conviction for a lesser offense; or
    34    (b) Vacate the judgment and order a new trial  wherein  the  defendant
    35  enters a plea to the same offense in order to permit the court to resen-
    36  tence  the  defendant  in  accordance  with the amendatory provisions of
    37  subdivision one-a of section 70.15 of the penal law.
    38    § 5. This act shall take effect immediately.