STATE OF NEW YORK ________________________________________________________________________ 158 2025-2026 Regular Sessions IN SENATE (Prefiled) January 8, 2025 ___________ Introduced by Sens. SALAZAR, BRISPORT, BROUK, CLEARE, COMRIE, COONEY, FELDER, FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM, HINCHEY, HOYLMAN-SIGAL, JACKSON, KAVANAGH, KRUEGER, MAY, MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SANDERS, SEPULVEDA, SERRANO, WEBB -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to authorizing certain persons confined in institutions operated by the department of corrections and community supervision to apply for a sentence reduction The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The criminal procedure law is amended by adding a new 2 section 440.45 to read as follows: 3 § 440.45 Application for sentence reduction. 4 1. (a) Notwithstanding any other provision of law, including any mini- 5 mum sentence requirement, any person confined in an institution operated 6 by the department of corrections and community supervision who has 7 served ten years of their sentence, or one-half of the minimum term of 8 an indeterminate sentence where the minimum term equals or exceeds ten 9 years, or one-half of a determinate sentence where the sentence equals 10 or exceeds ten years, whichever is less, may apply for a reduction of 11 their sentence pursuant to the provisions of this statute. For the 12 purposes of this subdivision, the term "sentence" shall include any 13 aggregate sentence where consecutive sentences are imposed. 14 (b) Notwithstanding paragraph (a) of this subdivision, an otherwise 15 ineligible person shall be deemed eligible to apply for a reduction in 16 sentence upon consent of the prosecutor in the underlying criminal 17 action in which the sentence was imposed. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00043-01-5
S. 158 2 1 (c) Notwithstanding paragraph (a) of this subdivision, the prosecutor 2 in the underlying criminal action in which a sentence was imposed may 3 initiate an application for resentencing on behalf of the incarcerated 4 individual and upon such application an attorney shall be assigned to 5 represent the incarcerated individual in proceedings pursuant to this 6 section. 7 (d) No waiver of the right to make an application for a sentence 8 reduction under this section shall be permitted or honored by the 9 sentencing court. Any such waiver shall be deemed void and unenforcea- 10 ble. 11 (e) No less than thirty days before the date on which the person 12 becomes eligible pursuant to paragraph (a) of this subdivision to apply 13 for a sentence reduction, the department of corrections and community 14 supervision shall provide written notice of this section and its 15 provisions to: 16 (i) the defendant; 17 (ii) the attorney of record; 18 (iii) the administrator of the county panel established for purposes 19 of the administration of article eighteen-B of the county law and all 20 institutional offices that provide criminal defense services within the 21 county in which the sentence was imposed; 22 (iv) Prisoners' Legal Services of New York; 23 (v) the sentencing court; and 24 (vi) the prosecutor in the underlying criminal action in which the 25 sentence was imposed. 26 (f) A person who is eligible for a sentence reduction pursuant to this 27 subdivision may request that the court assign such person an attorney 28 for the preparation of and proceedings on the application for resentenc- 29 ing pursuant to this section. The attorney shall be assigned in accord- 30 ance with the provisions of subdivision one of section seven hundred 31 seventeen and subdivision four of section seven hundred twenty-two of 32 the county law and the related provisions of article eighteen-A of such 33 law for the application and any proceedings under this section, includ- 34 ing any appeal and successive application. The court shall notify the 35 applicant about the appointment of counsel. 36 2. (a) An application for a sentence reduction under this section 37 shall be filed in the county in which the sentence was imposed to reduce 38 the sentence of the applicant pursuant to this section and may include 39 affidavits, letters, declarations, records from the department of 40 corrections and community supervision, video submissions, or any other 41 written or electronic material. 42 (b) Upon the court's receipt of an application for a sentence 43 reduction, the court shall promptly notify the appropriate prosecutor 44 and provide such prosecutor with a copy of the application. 45 (c) An application filed pursuant to this section shall be randomly 46 assigned by the administrative judge designated by the office of court 47 administration with jurisdiction over the county where the application 48 is filed to any superior court judge with criminal jurisdiction other 49 than the judge who first sentenced the applicant unless the judge who 50 first sentenced the applicant is the only judge in that county. 51 (d) An application filed under this section may be amended or supple- 52 mented as necessary. 53 (e) After the filing of an application to reduce a sentence under this 54 section, the court may direct the parties to expand the record by 55 submitting additional written materials relating to the application.
S. 158 3 1 (f) (i) The court shall, upon request of the applicant or the prose- 2 cuting office, conduct a hearing on the application, at which the appli- 3 cant and counsel for the applicant shall be given the opportunity to be 4 heard. Such hearing shall be recorded or transcribed. The applicant has 5 the right to be present at any such hearing unless the applicant waives 6 the right to be present in writing. 7 (ii) In a hearing pursuant to subparagraph (i) of this paragraph, the 8 court shall allow parties to present any evidence pertinent to the issue 9 of a sentence reduction and the factors outlined in paragraph (b) of 10 subdivision four of this section. Such evidence may include documents, 11 live testimony, tangible objects, or any other class of evidence or 12 information pertinent to sentencing. At such hearing, the applicant 13 shall have the right to make a statement personally, on their own 14 behalf, in the same manner as provided in subdivision one of section 15 380.50 of this part. 16 3. (a) Notwithstanding any other provision of law, a court shall 17 reduce a term of imprisonment imposed upon a defendant if: 18 (i) the applicant is eligible pursuant to subdivision one of this 19 section; and 20 (ii) the court finds, after considering the factors set forth in 21 subdivision four of this section, that the interests of justice warrant 22 a sentence modification. 23 (b) (i) Notwithstanding any other provision of law, when reducing an 24 applicant's sentence under this section, the court may issue a sentence 25 less than the minimum term otherwise required by article seventy of the 26 penal law. Otherwise, the applicable provisions in article seventy of 27 the penal law in effect at the time of the sentence reduction shall 28 apply. 29 (ii) Notwithstanding any other provision of law, when reducing an 30 applicant's sentence under this section, the court may issue a sentence 31 to be served concurrently to any other sentence of imprisonment, being 32 served by the applicant. 33 (iii) Notwithstanding any other provision of law, when reducing an 34 applicant's sentence under this section, the court may sentence the 35 applicant to a less than minimum term of supervised release otherwise 36 required by law. 37 (c) In ordering a sentence reduction, the court shall, unless counter- 38 vailing considerations require, reduce the applicant's sentence so that 39 the applicant will be eligible for immediate release from prison after 40 the necessary calculations. 41 (d) The court may not increase any applicant's sentence, and if the 42 original judgment was the result of a plea agreement, resentencing 43 pursuant to this section shall not constitute grounds for a prosecutor 44 or the court to withdraw their agreement to the original plea agreement. 45 4. (a) There shall be a rebuttable presumption that the applicant's 46 sentence shall be reduced in the case of: 47 (i) an applicant who is fifty-five years of age or older on the date 48 on which the applicant files an application for a sentence reduction 49 pursuant to subdivision one of this section; or 50 (ii) an applicant who was twenty-five years old or younger on the date 51 on which the applicant committed the offense or offenses for which the 52 applicant is imprisoned. 53 (b) The court, in determining whether to reduce a term of imprisonment 54 pursuant to subdivision three of this section, shall consider the 55 following factors:
S. 158 4 1 (i) the history and characteristics of the applicant at the time of 2 the application for a reduction in sentence, including but not limited 3 to: 4 (1) any history of abuse, trauma, or involvement in the child welfare 5 system; 6 (2) the potential benefits to children and family members of reunifi- 7 cation with the applicant; 8 (3) rehabilitation demonstrated by the applicant; 9 (4) the applicant's records while incarcerated; and 10 (5) the applicant's efforts to participate in educational, therapeu- 11 tic, and vocational opportunities while incarcerated to the extent such 12 programs were available; provided however that the fact that the appli- 13 cant may have been unable to participate in treatment or other program- 14 ming while incarcerated despite such applicant's willingness to do so 15 shall not be considered a negative factor in determining an application 16 pursuant to this section; 17 (ii) the circumstances of the offense, including the applicant's role 18 in its commission, whether the applicant was under the influence of 19 another, and whether there is any other factor that would tend to dimin- 20 ish the applicant's culpability; 21 (iii) any report from a physical, mental, or psychiatric examination 22 of the applicant conducted by a licensed healthcare professional; 23 (iv) any statement offered in response to this application by any 24 victim of an offense for which the applicant is imprisoned or by a fami- 25 ly member of the victim if the victim is deceased; 26 (v) any evidence concerning whether the applicant's sentence was 27 enhanced because the applicant exercised their constitutional right to a 28 trial, including but not limited to, evidence concerning the plea offers 29 made prior to the trial; 30 (vi) any presentation of argument and evidence by counsel for the 31 applicant or by the applicant; 32 (vii) any presentation of argument and evidence by the prosecutor; and 33 (viii) the financial cost of continued incarceration to the state 34 and/or localities. 35 5. A written order determining an application for reduction of 36 sentence shall issue forthwith and in no event later than thirty days 37 after any hearing or after all submissions have been filed if no hearing 38 is held. Such an order shall include detailed written findings of fact 39 and the reasons for granting or denying the application. 40 6. In calculating any new sentence to be served by the applicant, such 41 applicant shall be credited for any jail time credited towards the 42 subject convictions as well as any period of incarceration credited 43 toward the sentence or sentences originally imposed. 44 7. An appeal may be taken as of right in accordance with applicable 45 provisions of this chapter: 46 (a) from an order denying the application for a sentence reduction; or 47 (b) from a new sentence imposed under this section and may be based on 48 the grounds that: 49 (i) the term of the new sentence is harsh or excessive; or 50 (ii) the term of the new sentence is unauthorized as a matter of law. 51 8. The applicant shall be permitted to file successive applications 52 and such applications shall not be considered more than once every three 53 years. 54 9. (a) This section shall not be construed to abridge or modify any 55 existing remedy an incarcerated individual may have under habeas corpus,
S. 158 5 1 statutory or judicial postconviction relief, or any other legal frame- 2 work. 3 (b) An application under this section shall not impact in any way or 4 be impacted in any way by any pending habeas or other postconviction 5 proceeding, nor shall the denial of an application under this section 6 preclude such remedies from being granted. 7 10. In three years, the comptroller shall conduct an analysis of 8 savings found from decarceration and shall make recommendations to the 9 legislature regarding diverting such savings to fund prison-based and 10 community-based programs designed to counter recidivism through educa- 11 tion, therapeutic intervention, maintenance of familial and social 12 networks, restorative justice practices for survivors of crimes, and 13 successful post-custodial re-entry to society. 14 11. (a) The clerk of the court upon determination of an application 15 filed pursuant to this section shall report the following information to 16 the office of court administration: 17 (i) the name, department identification number, and race of each 18 incarcerated individual who has been denied or granted resentencing; 19 (ii) how many years of imprisonment each incarcerated individual 20 served at the time of the application; 21 (iii) any new sentence if applicable; 22 (iv) the county and the name of the judge deciding the application; 23 (v) whether the prosecutor consented, opposed or took no position on 24 the application; and 25 (vi) if any prior applications had been submitted and the date such 26 applications were decided. 27 (b) The office of court administration shall provide an annual collec- 28 tive report containing the information received from the clerks of the 29 court pursuant to paragraph (a) of this subdivision to the governor and 30 legislature. 31 § 2. Any applicant who is immediately eligible to apply for a sentence 32 reduction pursuant to section 440.45 of the criminal procedure law shall 33 be provided the notice required pursuant to paragraph (d) of subdivision 34 1 of such section within sixty days of the effective date of this act. 35 § 3. This act shall take effect immediately and shall apply to 36 offenses committed prior to, on or after the effective date of this act.