Provides for notification between the department of corrections and the sentencing court as to erroneous sentences

Summary of provisions

Section 1 of the bill would amend Correction Law § 601-a to require the Department of Correctional Services (DOCS) to notify the District Attor- ney, defense counsel and the sentencing court when it receives a defend- ant who has been erroneously sentenced, and would clarify that the court and/or the District Attorney would be responsible for providing DOCS with an order to produce such a defendant in court for resentencing.

Section 2 of the bill sets forth the effective date.

Existing law

Correction Law § 601-a currently provides that when DOCS becomes aware that a person in its custody has been erroneously sentenced, it must notify the District Attorney in the county in which the inmate was sentenced, who shall then conduct an investigation. If the District Attorney believes that the person has been erroneously sentenced, he or she must notify DOCS, which must then notify the sheriff or other appro- priate person to remove the inmate and have him or her taken back before the original court to be resentenced.

Legisaltive history

This is a new proposal.

Statement in support

Before its amendment by Chapter 141 of the Laws of 2008, Correction Law § 601-a required DOCS to notify the appropriate District Attorney when a person in its custody had been erroneously sentenced as a second, third or fourth offender. The recent amendment, which was part of an overall effort by the State to address numerous cases in which courts neglected to pronounce on the record the mandatory periods of post-release super- vision that were required for all determinate sentences, required DOCS to make such a notification in all situations of erroneous sentences, and not just when an inmate had been erroneously sentenced as a predi- cate felon.

In order to ensure that erroneous sentences may be promptly corrected, this bill would require DOCS to notify the District Attorney and the inmate's defense counsel, as well as the sentencing court, of the error. While it is important to notify the District Attorney of such an error to allow him or her to make a timely motion to set aside the illegal

sentence pursuant to Criminal Procedure Law § 440.40, such an error should also be brought to the attention of the inmate's defense attorney and the sentencing court. That court may agree that the sentence is invalid and take corrective action on its own. Indeed, it is ultimately that court's responsibility to examine the legality of the imposed sentence and, if it agrees that the sentence is erroneous, to schedule any resentencing proceeding. This bill will ensure that sentencing courts and defense attorneys are given the prompt notice that is neces- sary to allow the courts to correct their own errors in an expeditious manner.

Furthermore, under the current wording of Correction Law § 601-a, DOCS cannot unilaterally direct a local corrections official to remove a confined inmate and deliver him or her to a sentencing court to correct an erroneous sentence. Instead, consistent with Correction Law Section 72(2), an order to produce must first be issued by a court that has the authority to require the inmate's presence, and such order must be served on DOCS. There is no provision in Correction Law § 601-a address- ing the procedural issue of how an erroneously sentenced inmate is to be produced before the sentencing court. This bill would allow the court, or the District Attorney at the court's direction, to arrange for such an order, so that the inmate may be produced in court to have his or her sentence corrected.

Budget implications

None.

Effective date

This bill would take effect immediately.