2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 440 - Post-Judgment Motions › 440.46 - Motion for Resentence; Certain Controlled Substance Offenders.

§ 440.46 Motion for resentence; certain controlled substance offenders.
1.  Any  person  in  the  custody of the department of corrections and
community supervision convicted of a class B felony offense  defined  in
article two hundred twenty of the penal law which was committed prior to
January  thirteenth,  two thousand five, who is serving an indeterminate
sentence with a maximum term of more than three years,  may,  except  as
provided  in  subdivision  five  of  this  section,  upon  notice to the
appropriate district attorney, apply to be resentenced to a  determinate
sentence in accordance with sections 60.04 and 70.70 of the penal law in
the court which imposed the sentence.
2.  As part of any such application, the defendant may also move to be
resentenced to a determinate sentence in accordance with  section  70.70
of  the  penal  law for any one or more class C, D, or E felony offenses
defined in article two hundred twenty or two hundred twenty-one  of  the
penal  law,  the  sentence  or  sentences  for which were imposed by the
sentencing court at the same time or were included in the same order  of
commitment as such class B felony.
3.  The  provisions  of  section twenty-three of chapter seven hundred
thirty-eight  of  the  laws  of  two  thousand  four  shall  govern  the
proceedings  on  and  determination of a motion brought pursuant to this
section;  provided,  however  that  the  court's  consideration  of  the
institutional record of confinement of such person shall include but not
be   limited  to  such  person's  participation  in  or  willingness  to
participate in treatment or other  programming  while  incarcerated  and
such person's disciplinary history. The fact that a person may have been
unable   to   participate   in  treatment  or  other  programming  while
incarcerated despite such person's willingness to do  so  shall  not  be
considered  a  negative  factor in determining a motion pursuant to this
section.
4. 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, shall apply to the
preparation of and proceedings on  motions  pursuant  to  this  section,
including any appeals.
5. The provisions of this section shall not apply to any person who is
serving  a  sentence  on  a  conviction  for  or  has a predicate felony
conviction for an exclusion offense. For purposes of  this  subdivision,
an "exclusion offense" is:
(a)  a  crime for which the person was previously convicted within the
preceding ten years, excluding any time during which  the  offender  was
incarcerated  for  any  reason  between  the  time  of commission of the
previous felony and the time of commission of the present felony,  which
was:  (i)  a  violent  felony offense as defined in section 70.02 of the
penal law; or (ii) any other offense for which a merit time allowance is
not  available  pursuant  to  subparagraph  (ii)  of  paragraph  (d)  of
subdivision one of section eight hundred three of the correction law; or
(b)  a  second violent felony offense pursuant to section 70.04 of the
penal law or a persistent violent felony  offense  pursuant  to  section
70.08  of  the  penal  law  for  which  the  person  has previously been
adjudicated.