N.Y. CPL Law § 440.47 — New York Code / Act CPL / Part 2 / Title M / Article 440 / Section 440.47
Motion for resentence; domestic violence cases
Status: in_force

§ 440.47 Motion for resentence; domestic violence cases.\n  1. (a) Notwithstanding any contrary provision of law, any person\nconfined in an institution operated by the department of correction and\ncommunity supervision serving a sentence with a minimum or determinate\nterm of eight years or more for an offense committed prior to the\neffective date of this section and eligible for an alternative sentence\npursuant to section 60.12 of the penal law may, on or after such\neffective date, submit to the judge or justice who imposed the original\nsentence upon such person a request to apply for resentencing in\naccordance with section 60.12 of the penal law. Such person must include\nin his or her request documentation proving that she or he is confined\nin an institution operated by the department of corrections and\ncommunity supervision serving a sentence with a minimum or determinate\nterm of eight years or more for an offense committed prior to the\neffective date of this section and that she or he is serving such\nsentence for any offense eligible for an alternative sentence under\nsection 60.12 of the penal law.\n  (b) If, at the time of such person's request to apply for resentencing\npursuant to this section, the original sentencing judge or justice is a\njudge or justice of a court of competent jurisdiction, but such court is\nnot the court in which the original sentence was imposed, then the\nrequest shall be randomly assigned to another judge or justice of the\ncourt in which the original sentence was imposed. If the original\nsentencing judge is no longer a judge or justice of a court of competent\njurisdiction, then the request shall be randomly assigned to another\njudge or justice of the court.\n  (c) If the court finds that such person has met the requirements to\napply for resentencing in paragraph (a) of this subdivision, the court\nshall notify such person that he or she may submit an application for\nresentencing. Upon such notification, the person may request that the\ncourt assign him or her an attorney for the preparation of and\nproceedings on the application for resentencing pursuant to this\nsection. The attorney shall be assigned in accordance with the\nprovisions of subdivision one of section seven hundred seventeen and\nsubdivision four of section seven hundred twenty-two of the county law\nand the related provisions of article eighteen-A of such law.\n  (d) If the court finds that such person has not met the requirements\nto apply for resentencing in paragraph (a) of subdivision one of this\nsection, the court shall notify such person and dismiss his or her\nrequest without prejudice.\n  2. (a) Upon the court's receipt of an application for resentencing,\nthe court shall promptly notify the appropriate district attorney and\nprovide such district attorney with a copy of the application.\n  (b) If the judge or justice that received the application is not the\noriginal sentencing judge or justice, the application may be referred to\nthe original sentencing judge or justice provided that he or she is a\njudge or justice of a court of competent jurisdiction and that the\napplicant and the district attorney agree that the application should be\nreferred.\n  (c) An application for resentencing pursuant to this section must\ninclude at least two pieces of evidence corroborating the applicant's\nclaim that he or she was, at the time of the offense, a victim of\ndomestic violence subjected to substantial physical, sexual or\npsychological abuse inflicted by a member of the same family or\nhousehold as the applicant as such term is defined in subdivision one of\nsection 530.11 of this chapter.\n  At least one piece of evidence must be either a court record,\npre-sentence report, social services record, hospital record, sworn\nstatement from a witness to the domestic violence, law enforcement\nrecord, domestic incident report, or order of protection. Other evidence\nmay include, but shall not be limited to, local and state department of\ncorrections records, a showing based in part on documentation prepared\nat or near the time of the commission of the offense or the prosecution\nthereof tending to support the person's claim, or when there is\nverification of consultation with a licensed medical or mental health\ncare provider, employee of a court acting within the scope of his or her\nemployment, member of the clergy, attorney, social worker, or rape\ncrisis counselor as defined in section forty-five hundred ten of the\ncivil practice law and rules, or other advocate acting on behalf of an\nagency that assists victims of domestic violence for the purpose of\nassisting such person with domestic violence victim counseling or\nsupport.\n  (d) If the court finds that the applicant has not complied with the\nprovisions of paragraph (c) of this subdivision, the court shall dismiss\nthe application without prejudice.\n  (e) If the court finds that the applicant has complied with the\nprovisions of paragraph (c) of this subdivision, the court shall conduct\na hearing to aid in making its determination of whether the applicant\nshould be resentenced in accordance with section 60.12 of the penal law.\nAt such hearing the court shall determine any controverted issue of fact\nrelevant to the issue of sentencing. Reliable hearsay shall be\nadmissible at such hearings.\n  The court may consider any fact or circumstances relevant to the\nimposition of a new sentence which are submitted by the applicant or the\ndistrict attorney and may, in addition, consider the institutional\nrecord of confinement of such person, but shall not order a new\npre-sentence investigation and report or entertain any matter\nchallenging the underlying basis of the subject conviction. The court's\nconsideration of the institutional record of confinement of such\napplicant shall include, but not be limited to, such applicant's\nparticipation in or willingness to participate in programming such as\ndomestic violence, parenting and substance abuse treatment while\nincarcerated and such applicant's disciplinary history. The fact that\nthe applicant may have been unable to participate in treatment or other\nprogramming while incarcerated despite such applicant's willingness to\ndo so shall not be considered a negative factor in determining a motion\npursuant to this section.\n  (f) If the court determines that the applicant should not be\nresentenced in accordance with section 60.12 of the penal law, the court\nshall inform such applicant of its decision and shall enter an order to\nthat effect. Any order issued by a court pursuant to this section must\ninclude written findings of fact and the reasons for such order.\n  (g) If the court determines that the applicant should be resentenced\nin accordance with section 60.12 of the penal law, the court shall\nnotify the applicant that, unless he or she withdraws the application or\nappeals from such order, the court will enter an order vacating the\nsentence originally imposed and imposing the new sentence to be imposed\nas authorized by section 60.12 of the penal law. Any order issued by a\ncourt pursuant to this section must include written findings of fact and\nthe reasons for such order.\n  3. An appeal may be taken as of right in accordance with applicable\nprovisions of this chapter: (a) from an order denying resentencing; or\n(b) from a new sentence imposed under this provision and may be based on\nthe grounds that (i) the term of the new sentence is harsh or excessive;\nor (ii) that the term of the new sentence is unauthorized as a matter of\nlaw. An appeal in accordance with the applicable provisions of this\nchapter may also be taken as of right by the applicant from an order\nspecifying and informing such applicant of the term of the determinate\nsentence the court would impose upon resentencing on the ground that the\nterm of the proposed sentence is harsh or excessive; upon remand to the\nsentencing court following such appeal the applicant shall be given an\nopportunity to withdraw an application for resentencing before any\nresentence is imposed. The applicant may request that the court assign\nhim or her an attorney for the preparation of and proceedings on any\nappeals regarding his or her application for resentencing pursuant to\nthis section. The attorney shall be assigned in accordance with the\nprovisions of subdivision one of section seven hundred seventeen and\nsubdivision four of section seven hundred twenty-two of the county law\nand the related provisions of article eighteen-A of such law.\n  4. In calculating the new term to be served by the applicant pursuant\nto section 60.12 of the penal law, such applicant shall be credited for\nany jail time credited towards the subject conviction as well as any\nperiod of incarceration credited toward the sentence originally imposed.\n