Motion for resentence; persons convicted of certain marihuana offenses

§ 440.46-a Motion for resentence; persons convicted of certain marihuana\n offenses.\n 1. When a person is serving a sentence for a conviction in this state,\nwhether by trial verdict or guilty plea, under former article two\nhundred twenty-one of the penal law, and such persons' conduct as\nalleged in the accusatory instrument and/or shown by the guilty plea or\ntrial verdict would not have been a crime under article two hundred\ntwenty-two of the penal law, had such article two hundred twenty-two\nrather than former article two hundred twenty-one of the penal law been\nin effect at the time of such conduct, then the chief administrative\njudge of the state of New York shall, in accordance with this section,\nautomatically vacate, dismiss and expunge such conviction in accordance\nwith section 160.50 of this chapter, and the office of court\nadministration shall immediately notify the state division of criminal\njustice services, state department of corrections and community\nsupervision and the appropriate local correctional facility which shall\nimmediately effectuate the appropriate relief. Such notification to the\ndivision of criminal justice services shall also direct that such agency\nnotify all relevant police and law enforcement agencies of their duty to\ndestroy and/or mark records related to such case in accordance with\nsection 160.50 of this chapter. Nothing in this section shall prevent a\nperson who believes his or her sentence is required by this section to\nbe vacated, dismissed and/or expunged from filing a petition with the\ncourt to effectuate all appropriate relief.\n 2. (a) When a person is serving or has completed serving a sentence\nfor a conviction in this state, whether by trial verdict or guilty plea,\nunder former article two hundred twenty-one of the penal law, and such\nperson's conduct as alleged in the accusatory instrument and/or shown by\nthe guilty plea or trial verdict, or shown by other information: (i)\nwould not have been a crime under article two hundred twenty-two of the\npenal law, had such article two hundred twenty-two rather than former\narticle two hundred twenty-one of the penal law been in effect at the\ntime of such conduct; or (ii) under such circumstances such person would\nhave been guilty of a lesser or potentially less onerous offense under\nsuch article two hundred twenty-two than such former article two hundred\ntwenty-one of the penal law; then such person may petition the court of\nconviction pursuant to this article for vacatur of such conviction.\n (b) (i) Upon receiving a served and filed motion under paragraph (a)\nof this subdivision, the court shall presume that any conviction by plea\nwas not knowing, voluntary and intelligent and that any conviction by\nverdict and any accompanying sentence constitutes cruel and unusual\npunishment under the state constitution if either has severe or ongoing\nconsequences, including but not limited to potential or actual\nimmigration consequences; and the court shall further presume that the\nmovant satisfies the criteria in such paragraph (a) and thereupon make\nsuch finding and grant the motion to vacate such conviction on such\ngrounds in a written order unless the party opposing the motion proves,\nby clear and convincing evidence, that the movant does not satisfy the\ncriteria to bring such motion.\n (ii) If the petition meets the criteria in subparagraph (ii) of\nparagraph (a) of this subdivision, the court after affording the parties\nan opportunity to be heard and present evidence, may substitute, unless\nit is not in the interests of justice to do so, a conviction for an\nappropriate lesser offense under article two hundred twenty-two of the\npenal law.\n (c) In the event of any vacatur and/or substitution pursuant to this\nsubdivision, the office of court administration shall immediately notify\nthe state division of criminal justice services concerning such\ndetermination. Such notification to the division of criminal justice\nservices shall also direct that such agency notify all relevant police\nand law enforcement agencies of their duty to destroy and/or mark\nrecords related to such case in accordance with section 160.50 of this\nchapter or, where conviction for a crime is substituted pursuant to this\nsubdivision, update such agencies' records accordingly.\n 3. Under no circumstances may substitution under this section result\nin the imposition of a term of imprisonment or sentencing term,\nobligation or condition that is in any way either harsher than the\noriginal sentence or harsher than the sentence authorized for any\nsubstituted lesser offense.\n 4. (a) If the judge who originally sentenced the movant for such\noffense is not reasonably available, then the presiding judge for such\ncourt shall designate another judge authorized to act in the appropriate\njurisdiction to determine the petition or application.\n (b) Unless requested by the movant, no hearing is necessary to grant\nan application filed under subdivision two of this section.\n (c) When a felony conviction is vacated pursuant to this section and a\nlesser offense that is a misdemeanor or violation is substituted for\nsuch conviction, such lesser offense shall be considered a misdemeanor\nor violation, as the case may be, for all purposes. When a misdemeanor\nconviction is vacated pursuant to this section and a lesser offense that\nis a violation is substituted for such conviction, such lesser offense\nshall be considered a violation for all purposes.\n (d) Nothing in this section is intended to or shall diminish or\nabrogate any rights or remedies otherwise available to a defendant,\npetitioner or applicant. Relief under this section is available\nnotwithstanding that the judgment was for a violation of former sections\n221.05, 221.10, 221.15, 221.20, 221.35 or 221.40 of the penal law in\neffect prior to the effective date of this paragraph and that the\nunderlying action or proceeding has already been vacated, dismissed and\nexpunged.\n (e) Nothing in this and related sections of law is intended to\ndiminish or abrogate the finality of judgments in any case not falling\nwithin the purview of this section.\n (f) The provisions of this section shall be available, used and\napplied in parallel fashion by the family court and the criminal courts\nto juvenile delinquency adjudications, adolescent offender adjudications\nand youthful offender adjudications.\n (g) The chief administrator of the courts shall promulgate all\nnecessary rules and make available all necessary forms to enable the\nfiling of the petitions and applications provided in this section no\nlater than sixty days following the effective date of this section. All\nsentences eligible for automatic vacatur, dismissal and expungement\npursuant to subdivision one of this section shall be identified and the\nrequired entities notified within one year of the effective date of this\nsection.\n