Bill Text: NY S02036 | 2015-2016 | General Assembly | Amended
Bill Title: Relates to sentencing and resentencing in domestic violence cases.
Spectrum: Partisan Bill (Democrat 28-1)
Status: (Introduced - Dead) 2016-06-03 - PRINT NUMBER 2036B [S02036 Detail]
Download: New_York-2015-S02036-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2036--B 2015-2016 Regular Sessions IN SENATE January 21, 2015 ___________ Introduced by Sens. HASSELL-THOMPSON, ADDABBO, AVELLA, BOYLE, BRESLIN, CARLUCCI, COMRIE, DIAZ, DILAN, ESPAILLAT, GIANARIS, HAMILTON, HOYLMAN, KENNEDY, KLEIN, KRUEGER, LATIMER, MONTGOMERY, PANEPINTO, PARKER, PERALTA, PERKINS, RIVERA, SANDERS, SAVINO, SERRANO, SQUADRON, STAVI- SKY, STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 [of4imprisonment]; 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 a7conviction for an offense enumerated in subdivision one of such8section], 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 thirty10of 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07697-07-6S. 2036--B 2 1 that (a) at the time of the instant offense, the defendant was [the] a 2 victim of domestic violence subjected to substantial physical, sexual or 3 psychological abuse [by the victim or intended victim of such offense,] 4 inflicted by a member of the same family or household as the defendant 5 as such term is defined in subdivision one of section 530.11 of the 6 criminal procedure law; (b) such abuse was a significant contributing 7 factor [in causing the defendant to commit such offense and] to the 8 defendant's criminal behavior; (c) [the victim or intended victim of9such offense was a member of the same family or household as the defend-10ant as such term is defined in subdivision one of section 530.11 of the11criminal procedure law, may, in lieu of imposing such determinate12sentence of imprisonment, impose an indeterminate sentence of imprison-13ment in accordance with subdivisions two and three of this section.] 14 having regard for the nature and circumstances of the crime and the 15 history, character and condition of the defendant, that a sentence of 16 imprisonment pursuant to section 70.00, 70.02 or 70.06 of this title 17 would be unduly harsh may instead impose a sentence in accordance with 18 this section. 19 A court may determine that such abuse constitutes a significant 20 contributing factor pursuant to paragraph (b) of this subdivision 21 regardless of whether the defendant raised a defense pursuant to article 22 thirty-five, article forty, or subdivision one of section 125.25 of this 23 chapter. 24 At the hearing to determine whether the defendant should be sentenced 25 pursuant to this section, the court shall consider oral and written 26 arguments, take testimony from witnesses offered by either party, and 27 consider relevant evidence to assist in making its determination. Reli- 28 able hearsay shall be admissible at such hearings. 29 2. [The maximum term of an indeterminate sentence imposed pursuant to30subdivision one of this section must be fixed by the court as follows:] 31 Where a court would otherwise be required to impose a sentence pursuant 32 to section 70.02 of this title, the court may impose a definite sentence 33 of imprisonment of one year or less, or probation in accordance with the 34 provisions of section 65.00 of this title, or may fix a determinate term 35 of imprisonment as follows: 36 (a) For a class B felony, the term must be at least [six years] one 37 year and must not exceed [twenty-five] five years; 38 (b) For a class C felony, the term must be at least [four and one-half39years] one year and must not exceed [fifteen] three and one-half years; 40 (c) For a class D felony, the term must be at least [three years] one 41 year and must not exceed [seven] two years; and 42 (d) For a class E felony, the term must be [at least three years] one 43 year and must not exceed [four] one and one-half years. 44 3. [The minimum period of imprisonment under an indeterminate sentence45imposed pursuant to subdivision one of this section must be fixed by the46court at one-half of the maximum term imposed and must be specified in47the sentence] Where a court would otherwise be required to impose a 48 sentence for a class A felony offense pursuant to section 70.00 of this 49 title, the court may fix a determinate term of imprisonment of at least 50 five years and not to exceed fifteen years. 51 4. Where a court would otherwise be required to impose a sentence for 52 a class A felony offense pursuant to subparagraph (i) of paragraph (b) 53 of subdivision two of section 70.71 of this title, the court may fix a 54 determinate term of imprisonment of at least five years and not to 55 exceed eight years.S. 2036--B 3 1 5. Where a court would otherwise be required to impose a sentence for 2 a class A felony offense pursuant to subparagraph (i) of paragraph (b) 3 of subdivision three of section 70.71 of this title, the court may fix a 4 determinate term of imprisonment of at least five years and not to 5 exceed twelve years. 6 6. Where a court would otherwise be required to impose a sentence for 7 a class A felony offense pursuant to subparagraph (ii) of paragraph (b) 8 of subdivision two of section 70.71 of this title, the court may fix a 9 determinate term of imprisonment of at least one year and not to exceed 10 three years. 11 7. Where a court would otherwise be required to impose a sentence for 12 a class A felony offense pursuant to subparagraph (ii) of paragraph (b) 13 of subdivision three of section 70.71 of this title, the court may fix a 14 determinate term of imprisonment of at least three years and not to 15 exceed six years. 16 8. Where a court would otherwise be required to impose a sentence 17 pursuant to subdivision six of section 70.06 of this title, the court 18 may fix a term of imprisonment as follows: 19 (a) For a class B felony, the term must be at least three years and 20 must not exceed eight years; 21 (b) For a class C felony, the term must be at least two and one-half 22 years and must not exceed five years; 23 (c) For a class D felony, the term must be at least two years and must 24 not exceed three years; 25 (d) For a class E felony, the term must be at least one and one-half 26 years and must not exceed two years. 27 9. Where a court would otherwise be required to impose a sentence for 28 a class B, C, D or E felony offense pursuant to section 70.00 of this 29 title, the court may impose a sentence in accordance with the provisions 30 of subdivision two of section 70.70 of this title. 31 10. Except as provided in subdivision seven of this section, where a 32 court would otherwise be required to impose a sentence pursuant to 33 subdivision three of section 70.06 of this title, the court may impose a 34 sentence in accordance with the provisions of subdivision three of 35 section 70.70 of this title. 36 11. Where a court would otherwise be required to impose a sentence 37 pursuant to subdivision three of section 70.06 of this title, where the 38 prior felony conviction was for a felony offense defined in section 39 70.02 of this title, the court may impose a sentence in accordance with 40 the provisions of subdivision four of section 70.70 of this title. 41 § 2. Paragraphs (a), (b), (c), (d), (e) and (f) of subdivision 2 of 42 section 70.45 of the penal law, as amended by chapter 7 of the laws of 43 2007, are amended to read as follows: 44 (a) such period shall be one year whenever a determinate sentence of 45 imprisonment is imposed pursuant to subdivision two of section 70.70 of 46 this article or subdivision nine of section 60.12 of this title upon a 47 conviction of a class D or class E felony offense; 48 (b) such period shall be not less than one year nor more than two 49 years whenever a determinate sentence of imprisonment is imposed pursu- 50 ant to subdivision two of section 70.70 of this article or subdivision 51 nine of section 60.12 of this title upon a conviction of a class B or 52 class C felony offense; 53 (c) such period shall be not less than one year nor more than two 54 years whenever a determinate sentence of imprisonment is imposed pursu- 55 ant to subdivision three or four of section 70.70 of this article uponS. 2036--B 4 1 conviction of a class D or class E felony offense or subdivision ten of 2 section 60.12 of this title; 3 (d) such period shall be not less than one and one-half years nor more 4 than three years whenever a determinate sentence of imprisonment is 5 imposed pursuant to subdivision three or four of section 70.70 of this 6 article upon conviction of a class B felony or class C felony offense[;] 7 or subdivision eleven of section 60.12 of this title; 8 (e) such period shall be not less than one and one-half years nor more 9 than three years whenever a determinate sentence of imprisonment is 10 imposed pursuant to subdivision three of section 70.02 of this article 11 or subdivision two or eight of section 60.12 of this title upon a 12 conviction of a class D or class E violent felony offense or subdivision 13 four, five, six, or seven of section 60.12 of this title; 14 (f) such period shall be not less than two and one-half years nor more 15 than five years whenever a determinate sentence of imprisonment is 16 imposed pursuant to subdivision three of section 70.02 of this article 17 or subdivision two or eight of section 60.12 of this title upon a 18 conviction of a class B or class C violent felony offense. 19 § 3. The criminal procedure law is amended by adding a new section 20 440.47 to read as follows: 21 § 440.47 Motion for resentence; domestic violence cases. 22 1. (a) Notwithstanding any contrary provision of law, any person 23 confined in an institution operated by the department of correction and 24 community supervision serving a sentence with a minimum or determinate 25 term of eight years or more for an offense committed prior to the effec- 26 tive date of this section and eligible for an alternative sentence 27 pursuant to section 60.12 of the penal law may, on or after such effec- 28 tive date, submit to the judge or justice who imposed the original 29 sentence upon such person a request to apply for resentencing in accord- 30 ance with section 60.12 of the penal law. Such person must include in 31 his or her request documentation proving that she or he is confined in 32 an institution operated by the department of corrections and community 33 supervision serving a sentence with a minimum or determinate term of 34 eight years or more for an offense committed prior to the effective date 35 of this section and that she or he is serving such sentence for any 36 offense eligible for an alternative sentence under section 60.12 of the 37 penal law. 38 (b) If, at the time of such person's request to apply for resentencing 39 pursuant to this section, the original sentencing judge or justice is a 40 judge or justice of a court of competent jurisdiction, but such court is 41 not the court in which the original sentence was imposed, then the 42 request shall be randomly assigned to another judge or justice of the 43 court in which the original sentence was imposed. If the original 44 sentencing judge is no longer a judge or justice of a court of competent 45 jurisdiction, then the request shall be randomly assigned to another 46 judge or justice of the court. 47 (c) If the court finds that such person has met the requirements to 48 apply for resentencing in paragraph (a) of this subdivision, the court 49 shall notify such person that he or she may submit an application for 50 resentencing. Upon such notification, the person may request that the 51 court assign him or her an attorney for the preparation of and 52 proceedings on the application for resentencing pursuant to this 53 section. The attorney shall be assigned in accordance with the 54 provisions of subdivision one of section seven hundred seventeen and 55 subdivision four of section seven hundred twenty-two of the county law 56 and the related provisions of article eighteen-A of such law.S. 2036--B 5 1 (d) If the court finds that such person has not met the requirements 2 to apply for resentencing in paragraph (a) of subdivision one of this 3 section, the court shall notify such person and dismiss his or her 4 request without prejudice. 5 2. (a) Upon the court's receipt of an application for resentencing, 6 the court shall promptly notify the appropriate district attorney and 7 provide such district attorney with a copy of the application. 8 (b) If the judge or justice that received the application is not the 9 original sentencing judge or justice, the application may be referred to 10 the original sentencing judge or justice provided that he or she is a 11 judge or justice of a court of competent jurisdiction and that the 12 applicant and the district attorney agree that the application should be 13 referred. 14 (c) An application for resentencing pursuant to this section must 15 include at least two pieces of evidence corroborating the applicant's 16 claim that he or she was, at the time of the offense, a victim of domes- 17 tic violence subjected to substantial physical, sexual or psychological 18 abuse inflicted by a member of the same family or household as the 19 applicant as such term is defined in subdivision one of section 530.11 20 of this chapter. 21 At least one piece of evidence must be either a court record, pre-sen- 22 tence report, social services record, hospital record, sworn statement 23 from a witness to the domestic violence, law enforcement record, domes- 24 tic incident report, or order of protection. Other evidence may 25 include, but shall not be limited to, local and state department of 26 corrections records, a showing based in part on documentation prepared 27 at or near the time of the commission of the offense or the prosecution 28 thereof tending to support the person's claim, or when there is verifi- 29 cation of consultation with a licensed medical or mental health care 30 provider, employee of a court acting within the scope of his or her 31 employment, member of the clergy, attorney, social worker, or rape 32 crisis counselor as defined in section forty-five hundred ten of the 33 civil practice law and rules, or other advocate acting on behalf of an 34 agency that assists victims of domestic violence for the purpose of 35 assisting such person with domestic violence victim counseling or 36 support. 37 (d) If the court finds that the applicant has not complied with the 38 provisions of paragraph (c) of this subdivision, the court shall dismiss 39 the application without prejudice. 40 (e) If the court finds that the applicant has complied with the 41 provisions of paragraph (c) of this subdivision, the court shall conduct 42 a hearing to aid in making its determination of whether the applicant 43 should be resentenced in accordance with section 60.12 of the penal law. 44 At such hearing the court shall determine any controverted issue of fact 45 relevant to the issue of sentencing. Reliable hearsay shall be admissi- 46 ble at such hearings. 47 The court may consider any fact or circumstances relevant to the impo- 48 sition of a new sentence which are submitted by the applicant or the 49 district attorney and may, in addition, consider the institutional 50 record of confinement of such person, but shall not order a new pre-sen- 51 tence investigation and report or entertain any matter challenging the 52 underlying basis of the subject conviction. The court's consideration of 53 the institutional record of confinement of such applicant shall include, 54 but not be limited to, such applicant's participation in or willingness 55 to participate in programming such as domestic violence, parenting and 56 substance abuse treatment while incarcerated and such applicant's disci-S. 2036--B 6 1 plinary history. The fact that the applicant may have been unable to 2 participate in treatment or other programming while incarcerated despite 3 such applicant's willingness to do so shall not be considered a negative 4 factor in determining a motion pursuant to this section. 5 (f) If the court determines that the applicant should not be resen- 6 tenced in accordance with section 60.12 of the penal law, the court 7 shall inform such applicant of its decision and shall enter an order to 8 that effect. Any order issued by a court pursuant to this section must 9 include written findings of fact and the reasons for such order. 10 (g) If the court determines that the applicant should be resentenced 11 in accordance with section 60.12 of the penal law, the court shall noti- 12 fy the applicant that, unless he or she withdraws the application or 13 appeals from such order, the court will enter an order vacating the 14 sentence originally imposed and imposing the new sentence to be imposed 15 as authorized by section 60.12 of the penal law. Any order issued by a 16 court pursuant to this section must include written findings of fact and 17 the reasons for such order. 18 3. An appeal may be taken as of right in accordance with applicable 19 provisions of this chapter: (a) from an order denying resentencing; or 20 (b) from a new sentence imposed under this provision and may be based on 21 the grounds that (i) the term of the new sentence is harsh or excessive; 22 or (ii) that the term of the new sentence is unauthorized as a matter of 23 law. An appeal in accordance with the applicable provisions of this 24 chapter may also be taken as of right by the applicant from an order 25 specifying and informing such applicant of the term of the determinate 26 sentence the court would impose upon resentencing on the ground that the 27 term of the proposed sentence is harsh or excessive; upon remand to the 28 sentencing court following such appeal the applicant shall be given an 29 opportunity to withdraw an application for resentencing before any 30 resentence is imposed. The applicant may request that the court assign 31 him or her an attorney for the preparation of and proceedings on any 32 appeals regarding his or her application for resentencing pursuant to 33 this section. The attorney shall be assigned in accordance with the 34 provisions of subdivision one of section seven hundred seventeen and 35 subdivision four of section seven hundred twenty-two of the county law 36 and the related provisions of article eighteen-A of such law. 37 4. In calculating the new term to be served by the applicant pursuant 38 to section 60.12 of the penal law, such applicant shall be credited for 39 any jail time credited towards the subject conviction as well as any 40 period of incarceration credited toward the sentence originally imposed. 41 § 4. Subdivision 1 of section 450.90 of the criminal procedure law, as 42 amended by section 10 of part AAA of chapter 56 of the laws of 2009, is 43 amended to read as follows: 44 1. Provided that a certificate granting leave to appeal is issued 45 pursuant to section 460.20, an appeal may, except as provided in subdi- 46 vision two, be taken to the court of appeals by either the defendant or 47 the people from any adverse or partially adverse order of an intermedi- 48 ate appellate court entered upon an appeal taken to such intermediate 49 appellate court pursuant to section 450.10, 450.15, or 450.20, or from 50 an order granting or denying a motion to set aside an order of an inter- 51 mediate appellate court on the ground of ineffective assistance or 52 wrongful deprivation of appellate counsel, or by either the defendant or 53 the people from any adverse or partially adverse order of an intermedi- 54 ate appellate court entered upon an appeal taken to such intermediate 55 appellate court from an order entered pursuant to section 440.46 or 56 section 440.47 of this chapter. An order of an intermediate appellateS. 2036--B 7 1 court is adverse to the party who was the appellant in such court when 2 it affirms the judgment, sentence or order appealed from, and is adverse 3 to the party who was the respondent in such court when it reverses the 4 judgment, sentence or order appealed from. An appellate court order 5 which modifies a judgment or order appealed from is partially adverse to 6 each party. 7 § 5. Paragraph (a) of subdivision 2 of section 390.50 of the criminal 8 procedure law, as amended by section 5 of part OO of chapter 56 of the 9 laws of 2010, is amended to read as follows: 10 (a) Not less than one court day prior to sentencing, unless such time 11 requirement is waived by the parties, the pre-sentence report or memo- 12 randum shall be made available by the court for examination and for 13 copying by the defendant's attorney, the defendant himself, if he has no 14 attorney, and the prosecutor. In its discretion, the court may except 15 from disclosure a part or parts of the report or memoranda which are not 16 relevant to a proper sentence, or a diagnostic opinion which might seri- 17 ously disrupt a program of rehabilitation, or sources of information 18 which have been obtained on a promise of confidentiality, or any other 19 portion thereof, disclosure of which would not be in the interest of 20 justice. In all cases where a part or parts of the report or memoranda 21 are not disclosed, the court shall state for the record that a part or 22 parts of the report or memoranda have been excepted and the reasons for 23 its action. The action of the court excepting information from disclo- 24 sure shall be subject to appellate review. The pre-sentence report shall 25 be made available by the court for examination and copying in connection 26 with any appeal in the case, including an appeal under this subdivision. 27 Upon written request, the court shall make a copy of the presentence 28 report, other than a part or parts of the report redacted by the court 29 pursuant to this paragraph, available to the defendant for use before 30 the parole board for release consideration or an appeal of a parole 31 board determination or an application for resentencing pursuant to 32 section 440.46 or 440.47 of this chapter. In his or her written request 33 to the court the defendant shall affirm that he or she anticipates an 34 appearance before the parole board or intends to file an administrative 35 appeal of a parole board determination or meets the eligibility criteria 36 for and intends to file a motion for resentencing pursuant to 440.46 of 37 this chapter or has received notification from the court which received 38 his or her request to apply for resentencing pursuant to section 440.47 39 of this chapter confirming that he or she is eligible to submit an 40 application for resentencing pursuant to section 440.47 of this chapter. 41 The court shall respond to the defendant's written request within twenty 42 days from receipt of the defendant's written request. 43 § 6. This act shall take effect immediately; provided, however, that 44 sections one and two of this act shall apply to offenses committed on, 45 after and prior to such effective date where the sentence for such 46 offense has not yet been imposed; provided, further that sections three, 47 four and five of this act shall take effect on the ninetieth day after 48 it shall have become a law.
