2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 440 - Post-Judgment Motions › 440.46-A - Motion for Resentence; Persons Convicted of Certain Marihuana Offenses.

§ 440.46-a Motion for resentence; persons convicted of certain marihuana
offenses.
1. When a person is serving a sentence for a conviction in this state,
whether  by  trial  verdict  or  guilty  plea,  under former article two
hundred twenty-one of the  penal  law,  and  such  persons'  conduct  as
alleged  in the accusatory instrument and/or shown by the guilty plea or
trial verdict would not have been a  crime  under  article  two  hundred
twenty-two  of  the  penal  law, had such article two hundred twenty-two
rather than former article two hundred twenty-one of the penal law  been
in  effect  at  the  time of such conduct, then the chief administrative
judge of the state of New York shall, in accordance with  this  section,
automatically  vacate, dismiss and expunge such conviction in accordance
with  section  160.50  of  this  chapter,  and  the  office   of   court
administration  shall  immediately notify the state division of criminal
justice  services,  state  department  of  corrections   and   community
supervision  and the appropriate local correctional facility which shall
immediately effectuate the appropriate relief. Such notification to  the
division of criminal justice services shall also direct that such agency
notify all relevant police and law enforcement agencies of their duty to
destroy  and/or  mark  records  related  to such case in accordance with
section 160.50 of this chapter. Nothing in this section shall prevent  a
person  who  believes his or her sentence is required by this section to
be vacated, dismissed and/or expunged from filing a  petition  with  the
court to effectuate all appropriate relief.
2.  (a)  When  a person is serving or has completed serving a sentence
for a conviction in this state, whether by trial verdict or guilty plea,
under former article two hundred twenty-one of the penal law,  and  such
person's conduct as alleged in the accusatory instrument and/or shown by
the  guilty  plea  or  trial verdict, or shown by other information: (i)
would not have been a crime under article two hundred twenty-two of  the
penal  law,  had  such article two hundred twenty-two rather than former
article two hundred twenty-one of the penal law been in  effect  at  the
time of such conduct; or (ii) under such circumstances such person would
have  been  guilty of a lesser or potentially less onerous offense under
such article two hundred twenty-two than such former article two hundred
twenty-one of the penal law; then such person may petition the court  of
conviction pursuant to this article for vacatur of such conviction.
(b)  (i)  Upon receiving a served and filed motion under paragraph (a)
of this subdivision, the court shall presume that any conviction by plea
was not knowing, voluntary and intelligent and that  any  conviction  by
verdict  and  any  accompanying  sentence  constitutes cruel and unusual
punishment under the state constitution if either has severe or  ongoing
consequences,   including   but  not  limited  to  potential  or  actual
immigration consequences; and the court shall further presume  that  the
movant  satisfies  the criteria in such paragraph (a) and thereupon make
such finding and grant the motion to  vacate  such  conviction  on  such
grounds  in a written order unless the party opposing the motion proves,
by clear and convincing evidence, that the movant does not  satisfy  the
criteria to bring such motion.
(ii)  If  the  petition  meets  the  criteria  in subparagraph (ii) of
paragraph (a) of this subdivision, the court after affording the parties
an opportunity to be heard and present evidence, may substitute,  unless
it  is  not  in  the  interests of justice to do so, a conviction for an
appropriate lesser offense under article two hundred twenty-two  of  the
penal law.
(c)  In  the event of any vacatur and/or substitution pursuant to this
subdivision, the office of court administration shall immediately notify
the  state  division  of  criminal  justice  services  concerning   such

determination.  Such  notification  to  the division of criminal justice
services shall also direct that such agency notify all  relevant  police
and  law  enforcement  agencies  of  their  duty  to destroy and/or mark
records  related  to such case in accordance with section 160.50 of this
chapter or, where conviction for a crime is substituted pursuant to this
subdivision, update such agencies' records accordingly.
3. Under no circumstances may substitution under this  section  result
in  the  imposition  of  a  term  of  imprisonment  or  sentencing term,
obligation or condition that is in  any  way  either  harsher  than  the
original  sentence  or  harsher  than  the  sentence  authorized for any
substituted lesser offense.
4. (a) If the judge who  originally  sentenced  the  movant  for  such
offense  is  not reasonably available, then the presiding judge for such
court shall designate another judge authorized to act in the appropriate
jurisdiction to determine the petition or application.
(b) Unless requested by the movant, no hearing is necessary  to  grant
an application filed under subdivision two of this section.
(c) When a felony conviction is vacated pursuant to this section and a
lesser  offense  that  is  a misdemeanor or violation is substituted for
such conviction, such lesser offense shall be considered  a  misdemeanor
or  violation,  as the case may be, for all purposes. When a misdemeanor
conviction is vacated pursuant to this section and a lesser offense that
is a violation is substituted for such conviction, such  lesser  offense
shall be considered a violation for all purposes.
(d)  Nothing  in  this  section  is  intended  to or shall diminish or
abrogate any rights or remedies  otherwise  available  to  a  defendant,
petitioner   or  applicant.  Relief  under  this  section  is  available
notwithstanding that the judgment was for a violation of former sections
221.05, 221.10, 221.15, 221.20, 221.35 or 221.40 of  the  penal  law  in
effect  prior  to  the  effective  date  of  this paragraph and that the
underlying action or proceeding has already been vacated, dismissed  and
expunged.
(e)  Nothing  in  this  and  related  sections  of  law is intended to
diminish or abrogate the finality of judgments in any case  not  falling
within the purview of this section.
(f)  The  provisions  of  this  section  shall  be available, used and
applied in parallel fashion by the family court and the criminal  courts
to juvenile delinquency adjudications, adolescent offender adjudications
and youthful offender adjudications.
(g)  The  chief  administrator  of  the  courts  shall  promulgate all
necessary rules and make available all necessary  forms  to  enable  the
filing  of  the  petitions  and applications provided in this section no
later than sixty days following the effective date of this section.  All
sentences  eligible  for  automatic  vacatur,  dismissal and expungement
pursuant to subdivision one of this section shall be identified and  the
required entities notified within one year of the effective date of this
section.