CPL 440 Volume 3 Flashcards
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
(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 ___________ 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 (Authorized disposition; alternative sentence; domestic violence cases) 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 ( Authorized disposition; alternative sentence; domestic violence cases).
Such person must include in his or her request documentation proving that she or he is confined in an institution for any eligible offense.
eight years
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
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(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 _____________ 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.
be randomly assigned
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
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(c)
If the court finds that such person has met the requirements to apply for __________ 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 _________ for the preparation of and proceedings on the application for resentencing pursuant to this section.
The attorney shall be assigned in accordance with section 717 Public defender; duties (indigent defendants) and section 722 (Plan for representation) county law and the related provisions of article eighteen-A (Public Defender) of such law.
Resentencing ……. attorney
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
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(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 _________ his or her request (WITH/WITHOUT) prejudice.
Dismiss …… WITHOUT
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
(a) Upon the court’s receipt of an application for resentencing, the court shall promptly notify the appropriate __________ and provide such district attorney with a copy of the application.
district attorney
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
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(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 __________ 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.
original sentencing
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
2
(c)
An application for resentencing pursuant to this section must include at least ________ 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 their family or household.
At least ______ 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.
Two….. one
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
2
Other evidence for an application for resentencing 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, 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.
XX
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
2
d) If the court finds that the applicant has NOT submitted the required evidence, the court shall _______ the application without prejudice.
dismiss
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
(bard blind)
If the evidence requirements are met, the court will hold a hearing to decide if the applicant should be resentenced under a new domestic violence sentencing law.
The court will decide any disputed facts related to sentencing.
Only ___________ evidence is allowed at the hearing.
The court can consider any information relevant to the new sentence from the applicant or district attorney, including the applicant’s prison record.
The court will not order a new pre-sentence investigation or consider challenges to the original conviction.
When reviewing the prison record, the court will consider the applicant’s participation (or willingness to participate) in programs like domestic violence, parenting, and substance abuse treatment, as well as their disciplinary history.
The applicant’s inability to participate in programs due to factors beyond their control will not be a negative point.
hearsay
2
(e)
If the court finds that the applicant has complied with the evidence requirements, 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 (Authorized disposition; alternative sentence; domestic violence cases).
At such hearing the court shall determine any controverted issue of fact relevant to the issue of sentencing.
Reliable ______ 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.
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
2
(f)
If the court determines that the applicant should not be _________ in accordance with section 60.12 (Authorized disposition; alternative sentence; domestic violence cases) of the penal law, the court shall inform such applicant of its decision and shall enter an order to that effect with written findings of fact and the reasons for such order.
resentenced
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
2
(g)
If the court determines that the applicant should be resentenced in accordance with section 60.12 of the penal law (Authorized disposition; alternative sentence; domestic violence cases), the court shall notify the applicant that, unless he or she ________ the application or appeals from such order, the court will enter an order vacating the original sentence and imposing the new sentence as authorized by section PL 60.12 (Authorized disposition; alternative sentence; domestic violence cases).
Any order issued by a court pursuant to this section must include written findings of fact and the reasons for such order.
withdraws
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
An appeal may be taken as of right in accordance with applicable provisions of this chapter:
(a) from an order denying ___________; 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 ______ or excessive; or
- (ii) that the term of the new sentence is unauthorized as ____________
Resentencing…….. harsh ………. a matter of law.
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
3
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__________________ the court would impose upon resentencing on the ground that the term of the proposed sentence is______________ or excessive; upon remand to the sentencing court following such appeal the applicant shall be given an opportunity to ______________ 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 appropriate sections of article eighteen-A of such law (Public Defenders).
determinate sentence…… harsh…….. withdraw
(NEW) 440.47 Motion for resentence; domestic violence cases. (NO NOTES)
- In calculating the new term to be served by the applicant pursuant to section 60.12 of the penal law (Authorized disposition; alternative sentence; domestic violence cases), such applicant shall be _________ for any jail time credited towards the subject conviction as well as any period of incarceration credited toward the sentence originally imposed.
credited
