N.Y. CPL Law § 440.46 — New York Code / Act CPL / Part 2 / Title M / Article 440 / Section 440.46
Motion for resentence; certain controlled substance offenders
Status: in_force

§ 440.46 Motion for resentence; certain controlled substance offenders.\n  1. Any person in the custody of the department of corrections and\ncommunity supervision convicted of a class B felony offense defined in\narticle two hundred twenty of the penal law which was committed prior to\nJanuary thirteenth, two thousand five, who is serving an indeterminate\nsentence with a maximum term of more than three years, may, except as\nprovided in subdivision five of this section, upon notice to the\nappropriate district attorney, apply to be resentenced to a determinate\nsentence in accordance with sections 60.04 and 70.70 of the penal law in\nthe court which imposed the sentence.\n  2. As part of any such application, the defendant may also move to be\nresentenced to a determinate sentence in accordance with section 70.70\nof the penal law for any one or more class C, D, or E felony offenses\ndefined in article two hundred twenty or two hundred twenty-one of the\npenal law, the sentence or sentences for which were imposed by the\nsentencing court at the same time or were included in the same order of\ncommitment as such class B felony.\n  3. The provisions of section twenty-three of chapter seven hundred\nthirty-eight of the laws of two thousand four shall govern the\nproceedings on and determination of a motion brought pursuant to this\nsection; provided, however that the court's consideration of the\ninstitutional record of confinement of such person shall include but not\nbe limited to such person's participation in or willingness to\nparticipate in treatment or other programming while incarcerated and\nsuch person's disciplinary history. The fact that a person may have been\nunable to participate in treatment or other programming while\nincarcerated despite such person's willingness to do so shall not be\nconsidered a negative factor in determining a motion pursuant to this\nsection.\n  4. Subdivision one of section seven hundred seventeen and subdivision\nfour of section seven hundred twenty-two of the county law, and the\nrelated provisions of article eighteen-A of such law, shall apply to the\npreparation of and proceedings on motions pursuant to this section,\nincluding any appeals.\n  5. The provisions of this section shall not apply to any person who is\nserving a sentence on a conviction for or has a predicate felony\nconviction for an exclusion offense. For purposes of this subdivision,\nan "exclusion offense" is:\n  (a) a crime for which the person was previously convicted within the\npreceding ten years, excluding any time during which the offender was\nincarcerated for any reason between the time of commission of the\nprevious felony and the time of commission of the present felony, which\nwas: (i) a violent felony offense as defined in section 70.02 of the\npenal law; or (ii) any other offense for which a merit time allowance is\nnot available pursuant to subparagraph (ii) of paragraph (d) of\nsubdivision one of section eight hundred three of the correction law; or\n  (b) a second violent felony offense pursuant to section 70.04 of the\npenal law or a persistent violent felony offense pursuant to section\n70.08 of the penal law for which the person has previously been\nadjudicated.\n