2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 440 - Post-Judgment Motions › 440.47 - Motion for Resentence; Domestic Violence Cases.

§ 440.47 Motion for resentence; domestic violence cases.
1.  (a)  Notwithstanding  any  contrary  provision  of law, any person
confined in an institution operated by the department of correction  and
community  supervision  serving a sentence with a minimum or determinate
term of eight years or more  for  an  offense  committed  prior  to  the
effective  date of this section and eligible for an alternative sentence
pursuant to section 60.12 of  the  penal  law  may,  on  or  after  such
effective  date, submit to the judge or justice who imposed the original
sentence upon such  person  a  request  to  apply  for  resentencing  in
accordance with section 60.12 of the penal law. Such person must include
in  his  or her request documentation proving that she or he is confined
in  an  institution  operated  by  the  department  of  corrections  and
community  supervision  serving a sentence with a minimum or determinate
term of eight years or more  for  an  offense  committed  prior  to  the
effective  date  of  this  section  and  that  she or he is serving such
sentence for any offense eligible  for  an  alternative  sentence  under
section 60.12 of the penal law.
(b) If, at the time of such person's request to apply for resentencing
pursuant  to this section, the original sentencing judge or justice is a
judge or justice of a court of competent jurisdiction, but such court is
not the court in which the  original  sentence  was  imposed,  then  the
request  shall  be  randomly assigned to another judge or justice of the
court in which the  original  sentence  was  imposed.  If  the  original
sentencing judge is no longer a judge or justice of a court of competent
jurisdiction,  then  the  request  shall be randomly assigned to another
judge or justice of the court.
(c) If the court finds that such person has met  the  requirements  to
apply  for  resentencing in paragraph (a) of this subdivision, the court
shall notify such person that he or she may submit  an  application  for
resentencing.  Upon  such  notification, the person may request that the
court assign  him  or  her  an  attorney  for  the  preparation  of  and
proceedings  on  the  application  for  resentencing  pursuant  to  this
section.  The  attorney  shall  be  assigned  in  accordance  with   the
provisions  of  subdivision  one  of section seven hundred seventeen and
subdivision four of section seven hundred twenty-two of the  county  law
and the related provisions of article eighteen-A of such law.
(d)  If  the court finds that such person has not met the requirements
to apply for resentencing in paragraph (a) of subdivision  one  of  this
section,  the  court  shall  notify  such  person and dismiss his or her
request without prejudice.
2. (a) Upon the court's receipt of an  application  for  resentencing,
the  court  shall  promptly notify the appropriate district attorney and
provide such district attorney with a copy of the application.
(b) If the judge or justice that received the application is  not  the
original sentencing judge or justice, the application may be referred to
the  original  sentencing  judge or justice provided that he or she is a
judge or justice of a court  of  competent  jurisdiction  and  that  the
applicant and the district attorney agree that the application should be
referred.
(c)  An  application  for  resentencing  pursuant to this section must
include at least two pieces of evidence  corroborating  the  applicant's
claim  that  he  or  she  was,  at  the time of the offense, a victim of
domestic  violence  subjected  to  substantial   physical,   sexual   or
psychological  abuse  inflicted  by  a  member  of  the  same  family or
household as the applicant as such term is defined in subdivision one of
section 530.11 of this chapter.
At least one  piece  of  evidence  must  be  either  a  court  record,
pre-sentence  report,  social  services  record,  hospital record, sworn

statement from a witness  to  the  domestic  violence,  law  enforcement
record, domestic incident report, or order of protection. Other evidence
may  include, but shall not be limited to, local and state department of
corrections  records,  a showing based in part on documentation prepared
at or near the time of the commission of the offense or the  prosecution
thereof  tending  to  support  the  person's  claim,  or  when  there is
verification of consultation with a licensed medical  or  mental  health
care provider, employee of a court acting within the scope of his or her
employment,  member  of  the  clergy,  attorney,  social worker, or rape
crisis counselor as defined in section forty-five  hundred  ten  of  the
civil  practice  law and rules, or other advocate acting on behalf of an
agency that assists victims of domestic  violence  for  the  purpose  of
assisting  such  person  with  domestic  violence  victim  counseling or
support.
(d) If the court finds that the applicant has not  complied  with  the
provisions of paragraph (c) of this subdivision, the court shall dismiss
the application without prejudice.
(e)  If  the  court  finds  that  the  applicant has complied with the
provisions of paragraph (c) of this subdivision, the court shall conduct
a hearing to aid in making its determination of  whether  the  applicant
should be resentenced in accordance with section 60.12 of the penal law.
At such hearing the court shall determine any controverted issue of fact
relevant   to  the  issue  of  sentencing.  Reliable  hearsay  shall  be
admissible at such hearings.
The court may consider any  fact  or  circumstances  relevant  to  the
imposition of a new sentence which are submitted by the applicant or the
district  attorney  and  may,  in  addition,  consider the institutional
record of confinement  of  such  person,  but  shall  not  order  a  new
pre-sentence   investigation   and   report   or  entertain  any  matter
challenging the underlying basis of the subject conviction. The  court's
consideration  of  the  institutional  record  of  confinement  of  such
applicant shall  include,  but  not  be  limited  to,  such  applicant's
participation  in  or  willingness to participate in programming such as
domestic  violence,  parenting  and  substance  abuse  treatment   while
incarcerated  and  such  applicant's disciplinary history. The fact that
the applicant may have been unable to participate in treatment or  other
programming  while  incarcerated despite such applicant's willingness to
do so shall not be considered a negative factor in determining a  motion
pursuant to this section.
(f)  If  the  court  determines  that  the  applicant  should  not  be
resentenced in accordance with section 60.12 of the penal law, the court
shall inform such applicant of its decision and shall enter an order  to
that  effect.  Any order issued by a court pursuant to this section must
include written findings of fact and the reasons for such order.
(g) If the court determines that the applicant should  be  resentenced
in  accordance  with  section  60.12  of  the penal law, the court shall
notify the applicant that, unless he or she withdraws the application or
appeals from such order, the court will  enter  an  order  vacating  the
sentence  originally imposed and imposing the new sentence to be imposed
as authorized by section 60.12 of the penal law. Any order issued  by  a
court pursuant to this section must include written findings of fact and
the reasons for such order.
3.  An  appeal  may be taken as of right in accordance with applicable
provisions of this chapter: (a) from an order denying  resentencing;  or
(b) from a new sentence imposed under this provision and may be based on
the grounds that (i) the term of the new sentence is harsh or excessive;
or (ii) that the term of the new sentence is unauthorized as a matter of
law.  An  appeal  in  accordance  with the applicable provisions of this

chapter may also be taken as of right by the  applicant  from  an  order
specifying  and  informing such applicant of the term of the determinate
sentence the court would impose upon resentencing on the ground that the
term  of the proposed sentence is harsh or excessive; upon remand to the
sentencing court following such appeal the applicant shall be  given  an
opportunity  to  withdraw  an  application  for  resentencing before any
resentence is imposed. The applicant may request that the  court  assign
him  or  her  an  attorney for the preparation of and proceedings on any
appeals regarding his or her application for  resentencing  pursuant  to
this  section.  The  attorney  shall  be assigned in accordance with the
provisions of subdivision one of section  seven  hundred  seventeen  and
subdivision  four  of section seven hundred twenty-two of the county law
and the related provisions of article eighteen-A of such law.
4. In calculating the new term to be served by the applicant  pursuant
to  section 60.12 of the penal law, such applicant shall be credited for
any jail time credited towards the subject conviction  as  well  as  any
period of incarceration credited toward the sentence originally imposed.