REFORM A-II DRUG SENTENCES

LAWS OF NEW YORK, 2005
CHAPTER 643

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.  

AN ACT to authorize the resentencing of certain class A-II felony
controlled substance offenders

Became a law August 30, 2005, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.

     The People of the State of New York, represented in Senate and  Assembly, do enact as follows:

     Section 1.  Notwithstanding any contrary provision of law, any person in the custody of the department of correctional services convicted of a class A-II felony offense defined in article 220 of the penal law which was committed prior to the effective date of this section, and who was sentenced thereon to an indeterminate term of imprisonment with a minimum period not less than three years pursuant to provisions of the law in effect prior to the effective date of this section, and who is more than twelve months from being an eligible inmate as that term is defined in subdivision 2 of section 851 of the correction law, and who meets the eligibility  requirements of  paragraph (d) of subdivision 1 of section 803 of the correction law may, upon notice to the  appropriate  district attorney, apply  to  be resentenced in accordance with section 70.71 of the penal law in the court which imposed the original sentence.  Such application shall be referred for determination to the judge or justice who imposed the original sentence upon such person.  If at the time of the application 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 application shall be randomly assigned to another judge or justice of the court in which the original sentence was imposed, provided that the district attorney and applicant may agree that the application be referred to the   original sentencing judge. If the original sentencing judge is no longer a judge or justice of a court of competent jurisdiction, then the application shall be randomly assigned to another judge or justice of the court.  If the court determines that such person does not stand convicted of such a class A-II felony offense, it shall issue an order denying the application.  If the court determines that such person does stand convicted of such a class A-II felony offense, it may consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by such person or the people 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 shall offer an opportunity for a hearing and bring the applicant before it.  The court may also conduct a hearing, if necessary, to determine whether such person qualifies to be resentenced or to determine any controverted issue of fact relevant to the issue of sentencing.  Upon its review of the submissions and the findings of fact made in connection with the application, the court  shall, unless substantial justice dictates that the application should be denied, in which event the court shall issue an order denying the  application, specify and inform such person of the term of a determinate sentence of imprisonment it would impose upon such conviction, as authorized for a class A-II felony by and in accordance with section 70.71 of the penal law, in the event of a resentence and shall enter an order to that effect.  The court shall notify the person 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 a determinate sentence of imprisonment authorized to be imposed upon such conviction by section 70.71 of the penal law; provided that the term thereof shall be the same as the court previously specified.  Any order issued by a court pursuant to this section must include written findings of fact and the reasons for such order.  An appeal may be taken as of right in accordance with applicable provisions of the criminal procedure law: (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 the criminal procedure law may also be taken as of right by the defendant from an order specifying and informing such person 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 defendant shall be given an opportunity to withdraw an application for resentencing before any resentence is   imposed.  Subdivision 1 of section 717 and subdivision 4 of section 722 of the county law and the related provisions of article 18-A of such law shall apply to the preparation of and proceedings on applications pursuant to this section.  In calculating the term of imprisonment to be served by the person pursuant to the determinate sentence imposed, such person 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.
 
     § 2. This act shall take effect on the sixtieth day after it shall    have become a law.

   The Legislature of the STATE OF NEW YORK ss:
 
     Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of  this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

           JOSEPH L. BRUNO                                             SHELDON SILVER
   Temporary President of the Senate           Speaker of the Assembly