Section 440.46. Motion for resentence; certain controlled substance offenders

1. Any person  in  the  custody  of  the  department  of  correctional
  services  convicted  of  a class B felony offense defined in article two
  hundred twenty of the penal law which was  committed  prior  to  January
  thirteenth,  two thousand five, who is serving an indeterminate sentence
  with a maximum term of more than three years, may, except as provided in
  subdivision five  of  this  section,  upon  notice  to  the  appropriate
  district  attorney, apply to be resentenced to a determinate sentence in
  accordance with sections 60.04 and 70.70 of the penal law in  the  court
  which imposed the sentence.
    2.  As part of any such application, the defendant may also move to be
  resentenced to a determinate sentence in accordance with  section  70.70
  of  the  penal  law for any one or more class C, D, or E felony offenses
  defined in article two hundred twenty or two hundred twenty-one  of  the
  penal  law,  the  sentence  or  sentences  for which were imposed by the
  sentencing court at the same time or were included in the same order  of
  commitment as such class B felony.
    3.  The  provisions  of  section twenty-three of chapter seven hundred
  thirty-eight  of  the  laws  of  two  thousand  four  shall  govern  the
  proceedings  on  and  determination of a motion brought pursuant to this
  section;  provided,  however  that  the  court's  consideration  of  the
  institutional record of confinement of such person shall include but not
  be   limited  to  such  person's  participation  in  or  willingness  to
  participate in treatment or other  programming  while  incarcerated  and
  such person's disciplinary history. The fact that a person may have been
  unable   to   participate   in  treatment  or  other  programming  while
  incarcerated despite such person's willingness to do  so  shall  not  be
  considered  a  negative  factor in determining a motion pursuant to this
  section.
    **4.  Subdivision  one  of  section  seven   hundred   seventeen   and
  subdivision  four of section seven hundred twenty-two of the county law,
  and the related provisions of article  eighteen-A  of  such  law,  shall
  apply  to the preparation of and proceedings on motions pursuant to this
  section, including any appeals.
    ** NB Effective April 7, 2009
    5. The provisions of this section shall not apply to any person who is
  serving a sentence on  a  conviction  for  or  has  a  predicate  felony
  conviction  for  an exclusion offense. For purposes of this subdivision,
  an "exclusion offense" is:
    (a) a crime for which the person was previously convicted  within  the
  preceding  ten  years,  excluding any time during which the offender was
  incarcerated for any reason  between  the  time  of  commission  of  the
  previous  felony and the time of commission of the present felony, which
  was: (i) a violent felony offense as defined in  section  70.02  of  the
  penal law; or (ii) any other offense for which a merit time allowance is
  not  available  pursuant  to  subparagraph  (ii)  of  paragraph  (d)  of
  subdivision one of section eight hundred three of the correction law; or
    (b) a second violent felony offense pursuant to section 70.04  of  the
  penal  law  or  a  persistent violent felony offense pursuant to section
  70.08 of the  penal  law  for  which  the  person  has  previously  been
  adjudicated.
    * NB Effective October 7, 2009