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A00818 Summary:

BILL NOA00818
 
SAME ASSAME AS S06969
 
SPONSORAubry
 
COSPNSRCook, Dickens
 
MLTSPNSR
 
Amd §8-b, Ct Claims Act; amd §612, Tax L; add §668-h, Ed L; add §85-d, Civ Serv L
 
Relates to claims for unjust conviction.
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A00818 Actions:

BILL NOA00818
 
01/11/2023referred to judiciary
01/03/2024referred to judiciary
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A00818 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A818
 
SPONSOR: Aubry
  TITLE OF BILL: An act to amend the court of claims act and the tax law, in relation to claims for unjust conviction; to amend the education law, in relation to establishing wrongful conviction recovery scholarships; and to amend the civil service law, in relation to allowing additional credits for the wrongfully convicted   PURPOSE: The purpose of this legislation is to provide compensation and other benefits in the Court of Claims for people who have been wrongfully convicted and incarcerated in New York State.   SUMMARY OF PROVISIONS: Section 1: Sets forth the name of this act as the "wrongful conviction recovery act." Section 2: Amends section 8-b of the court of claims act, as added by chapter 1009 of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws of 2007. Section 3: Amends subsection (c) of section 612 of the tax law by adding a new paragraph 47. Section 4: Amends the education law by adding a new section 668-h. Section 5: Amends the civil service law by adding a new section 85-d. Section 6: Sets forth the effective date.   JUSTIFICATION: There have been approximately 1,810 exonerations of wrongfully convicted individuals nationwide since 1989; 214 of them in New York State. Of those exonerated in New York, 38 were based on DNA evidence, eight of which occurred in the past 5 years. There have also been exonerations in non-DNA cases involving false confessions, eyewitness error, false evidence, and police, prosecutor or judicial misconduct. In New York State, the total years served for those who were exonerated was in excess of 2,000, averaging 9.74 years in prison per person for crimes they did not commit. In 2014, the Brooklyn DA created the Conviction Review Unit (CRU), which has exonerated 20 people through 2016. One recent set of exonerations from the CRU involved three men who were found guilty of starting a fire that killed a mother and her five chil- dren in 1980 inside a Park Slope brownstone. The CRU "concluded that the single eyewitness who connected them to the crime was a habitual liar who recanted on her death bed" and that the science used to determine that the fire was arson was in fact junk science. Current fire experts determined that the fire was probably accidental. Two of the exonerated defendants served over 30 years each in prison and the third died behind bars. People who are wrongfully convicted often spend decades in prison and emerge with no money and few job skills, have not worked long enough to receive social security benefits, and have little or no financial support from family or friends. They may need extensive therapy, have medical issues, or simply be too old to participate significantly in the work force. It is imperative that the State compensate these individuals for the time they have been wrongfully incarcerated and give them the ability to make a fresh start in the years remaining to them. This bill would give the Court of Claims the authority to provide broad financial relief to such individuals and to give them health benefits and access to re-entry programs.   LEGISLATIVE HISTORY: 2021-2022: Referred to Judiciary in 2021 and Referred to Judiciary in 2022. 2019-2020: Referred to Judiciary in 2019 and Referred to Judiciary in 2020. 2017-2018: Referred to Judiciary in 2017 and Referred to Judiciary in 2018. 2016: Referred to Judiciary.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately and shall apply to claims filed on and after such date.
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A00818 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           818
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2023
                                       ___________
 
        Introduced by M. of A. AUBRY, COOK, DICKENS -- read once and referred to
          the Committee on Judiciary
 
        AN  ACT to amend the court of claims act and the tax law, in relation to
          claims for unjust conviction; to amend the education law, in  relation
          to  establishing  wrongful  conviction  recovery  scholarships; and to
          amend the civil service law, in relation to allowing additional  cred-
          its for the wrongfully convicted
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as  the  "wrongful
     2  conviction recovery act".
     3    §  2. Section 8-b of the court of claims act, as added by chapter 1009
     4  of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws
     5  of 2007, is amended to read as follows:
     6    § 8-b. Claims for unjust conviction [and imprisonment].  1. The legis-
     7  lature finds and declares that innocent persons who  have  been  wrongly
     8  convicted  of  crimes [and subsequently imprisoned] have been frustrated
     9  in seeking legal redress due to a variety of substantive  and  technical
    10  obstacles  in  the  law  and  that such persons should have an available
    11  avenue of redress over and above the  existing  tort  remedies  to  seek
    12  compensation  for  damages.  The legislature intends by enactment of the
    13  provisions of this section that those innocent persons  who  can  demon-
    14  strate  by  [clear  and convincing] a preponderance of the evidence that
    15  they were unjustly convicted [and imprisoned] be able to recover damages
    16  against the state. In light of the substantial burden of proof that must
    17  be carried by such persons, it is the intent of the legislature that the
    18  court, in exercising its discretion as permitted by  law  regarding  the
    19  weight and admissibility of evidence submitted pursuant to this section,
    20  shall,  in  the interest of justice, give due consideration to difficul-
    21  ties of proof caused by the passage of time, the death or unavailability
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01626-01-3

        A. 818                              2
 
     1  of witnesses, the destruction of evidence or other factors not caused by
     2  such persons or those acting on their behalf.
     3    2.  Any person convicted [and subsequently imprisoned] for one or more
     4  felonies or misdemeanors against the state  which  he  or  she  did  not
     5  commit  may,  under the conditions hereinafter provided, present a claim
     6  for damages against the  state.  In  scheduling  court  appearances  and
     7  filing  deadlines, the court shall give docket priority at each stage of
     8  the proceeding to such claims for damages under this  subdivision  where
     9  the  claimant  asserts  proof  of  innocence  through  DNA evidence. Any
    10  adjournments granted in the course of such a proceeding should be for as
    11  short a time as is practicable.
    12    3. In order to present the claim for unjust conviction [and  imprison-
    13  ment], claimant must establish by documentary evidence that:
    14    (a)  he or she has been convicted of one or more felonies or misdemea-
    15  nors against the state [and subsequently sentenced to a term  of  impri-
    16  sonment, and has served all or any part of the sentence]; and
    17    (b)  (i)  he  or she has been pardoned upon the ground of innocence of
    18  the crime or crimes for which he or she was sentenced and which are  the
    19  grounds for the complaint; or (ii) his or her judgment of conviction was
    20  reversed  or  vacated,  and the accusatory instrument dismissed or, if a
    21  new trial was ordered, either he or she was found not guilty at the  new
    22  trial  or  he  or  she  was  not  retried  and the accusatory instrument
    23  dismissed; provided that the  [judgement]  judgment  of  conviction  was
    24  reversed or vacated, and the accusatory instrument was dismissed, on any
    25  of  the  following grounds: (A) [paragraph (a), (b), (c), (e) or (g) of]
    26  subdivision one of section 440.10 of the criminal procedure law; or  (B)
    27  [subdivision  one  (where based upon grounds set forth in item (A) here-
    28  of), two, three (where the count dismissed was the sole  basis  for  the
    29  imprisonment  complained  of) or five of] section 470.20 of the criminal
    30  procedure law; or (C) comparable provisions of the former code of crimi-
    31  nal procedure or subsequent law; or  (D)  the  statute,  or  application
    32  thereof,  on  which  the  accusatory  instrument  was based violated the
    33  constitution of the United States or the state of New York; and
    34    (c) his or her claim is not time-barred by the provisions of  subdivi-
    35  sion seven of this section.
    36    4.  The  claim  shall  state  facts in sufficient detail to permit the
    37  court to find that claimant is likely to succeed  at  trial  in  proving
    38  that (a) he or she did not commit any of the acts charged in the accusa-
    39  tory instrument or his or her acts or omissions charged in the accusato-
    40  ry  instrument  did  not  constitute a felony or misdemeanor against the
    41  state, and (b) he or she did not by his or  her  own  conduct  cause  or
    42  bring  about  his  or her conviction. The claim shall be verified by the
    43  claimant. If the court finds after reading the claim  that  claimant  is
    44  not  likely  to  succeed at trial, it shall dismiss the claim, either on
    45  its own motion or on the motion of the state.
    46    5. In order to obtain a judgment in his or her  favor,  claimant  must
    47  prove by [clear and convincing] a preponderance of the evidence that:
    48    (a)  he or she has been convicted of one or more felonies or misdemea-
    49  nors against the state [and subsequently sentenced to a term  of  impri-
    50  sonment, and has served all or any part of the sentence]; and
    51    (b)  (i)  he  or she has been pardoned upon the ground of innocence of
    52  the crime or crimes for which he or she was sentenced and which are  the
    53  grounds for the complaint; or (ii) his or her judgment of conviction was
    54  reversed  or  vacated,  and the accusatory instrument dismissed or, if a
    55  new trial was ordered, either he or she was found not guilty at the  new
    56  trial  or  he  or  she  was  not  retried  and the accusatory instrument

        A. 818                              3
 
     1  dismissed; provided that the  [judgement]  judgment  of  conviction  was
     2  reversed or vacated, and the accusatory instrument was dismissed, on any
     3  of  the  following grounds: (A) [paragraph (a), (b), (c), (e) or (g) of]
     4  subdivision  one of section 440.10 of the criminal procedure law; or (B)
     5  [subdivision one (where based upon grounds set forth in item  (A)  here-
     6  of),  two,  three  (where the count dismissed was the sole basis for the
     7  imprisonment complained of) or five of] section 470.20 of  the  criminal
     8  procedure law; or (C) comparable provisions of the former code of crimi-
     9  nal  procedure  or  subsequent  law;  or (D) the statute, or application
    10  thereof, on which the  accusatory  instrument  was  based  violated  the
    11  constitution of the United States or the state of New York; and
    12    (c) he or she did not commit any of the acts [charged in the accusato-
    13  ry instrument or his acts or omissions charged in the accusatory instru-
    14  ment]  or omissions for which he or she was convicted or his or her acts
    15  or  omissions  did  not  constitute  a felony or misdemeanor against the
    16  state; and
    17    (d) he or she did not by his or her own conduct cause or  bring  about
    18  his or her conviction.
    19    6.  If the court finds that the claimant is entitled to a judgment, it
    20  shall award damages in such sum of money as the  court  determines  will
    21  fairly  and  reasonably compensate him or her, provided, if the claimant
    22  was incarcerated, such sum shall not be less than an award calculated at
    23  a rate of one million dollars per year during  which  the  claimant  was
    24  incarcerated  and was not under sentence for a separate crime. The court
    25  may also award reasonable attorneys' fees  incurred  in  the  claimant's
    26  defense  at  trial,  including any post-trial motions or appeals, in the
    27  process of vacating or reversing his or her criminal conviction, and  in
    28  the pursuit of a claim under this section.
    29    7.  Any  person  claiming  compensation  under this section based on a
    30  pardon that was granted before the effective date of this section or the
    31  dismissal of an accusatory instrument that occurred before the effective
    32  date of the chapter of  the  laws  of  two  thousand  twenty-three  that
    33  amended  this section shall file his or her claim within two years after
    34  [the] such effective date  [of  this  section].    Any  person  claiming
    35  compensation under this section based on a pardon that was granted on or
    36  after  the effective date of this section or the dismissal of an accusa-
    37  tory instrument that occurred on or after  the  effective  date  of  the
    38  chapter  of  the  laws  of  two  thousand twenty-three that amended this
    39  section shall file his or her claim within [two] three years  after  the
    40  pardon or dismissal.
    41    §  3.    Subsection  (c)  of  section 612 of the tax law is amended by
    42  adding a new paragraph 47 to read as follows:
    43    (47) The amount of any damage  awards  received  pursuant  to  section
    44  eight-b  of  the  court  of  claims  act and not excludable from federal
    45  adjusted gross income.
    46    § 4. The education law is amended by adding a  new  section  668-h  to
    47  read as follows:
    48    §  668-h.  Wrongful  conviction  recovery  scholarships.  1.  Eligible
    49  persons.  Notwithstanding subdivisions three and  five  of  section  six
    50  hundred  sixty-one  of  this  article,  individuals  pursuant to section
    51  eight-b of the court of claims act that have been determined to be enti-
    52  tled to a judgment for unjust conviction  or  upon  their  election  any
    53  children  of  an  individual  having been determined to be entitled to a
    54  judgment for unjust conviction shall be eligible to receive  a  wrongful
    55  conviction recovery scholarship.

        A. 818                              4
 
     1    2.  Amount.  (a)  The president shall grant annual scholarships to any
     2  person eligible pursuant to subdivision one of this section.  Recipients
     3  shall  be  granted annual scholarships if they are attending an institu-
     4  tion of the city university of New York or an institution of  the  state
     5  university  of New York including the statutory colleges at Cornell, the
     6  college of environmental  science  and  forestry  at  Syracuse  and  the
     7  college of ceramics at Alfred. The annual award shall be an amount equal
     8  to  the tuition charged at such institution provided that, notwithstand-
     9  ing any provision of law to the contrary, the tuition charged  to  award
    10  recipients  shall  not  exceed  that  charged to state resident students
    11  attending such institution; the mandatory fees charged at such  institu-
    12  tion;  and  the  non-tuition  cost  of attendance at such institution or
    13  college, provided that the scholarship shall not exceed an  amount  that
    14  is equal to the total cost of attendance determined for federal Title IV
    15  student  financial  aid purposes, less all other scholarships and grants
    16  provided by New York state, other states,  the  federal  government,  or
    17  other governments, and the amount of educational benefits paid under any
    18  program that would duplicate the purposes of this program, provided that
    19  any  scholarships  or  grants provided to a recipient by the institution
    20  which are intended to fund any portion of  the  difference  between  the
    21  annual state award and the actual costs of attendance at any such insti-
    22  tution  shall  not  be  considered  to  duplicate  the  purposes of this
    23  program.
    24    (b) "Non-tuition cost of attendance", as  used  in  this  subdivision,
    25  shall  mean:  (i)  the actual amount charged by the institution for room
    26  and board, and (ii) an allowance for transportation, books and  supplies
    27  as  determined  by  the president and as approved by the director of the
    28  budget, provided that such determination shall be  made  no  later  than
    29  December first of each year for use in the succeeding academic year.  In
    30  the event a student does not incur room or board charges at the institu-
    31  tion,  "non-tuition cost of attendance" shall mean an allowance for room
    32  and board as determined by the president and approved by the director of
    33  the budget. In determining allowances pursuant to this subparagraph, the
    34  president may take into consideration the allowances provided for in the
    35  Pell grant program.
    36    (c) In no event shall the combination of  all  student  financial  aid
    37  received  by  a student exceed a recipient's total cost of attendance at
    38  the institution being attended.
    39    3. Duration. Awards under this section shall be payable  for  each  of
    40  not more than four academic years of undergraduate study or five academ-
    41  ic  years  if  a program normally requires five years, as defined by the
    42  commissioner pursuant to article thirteen of this title.
    43    § 5. The civil service law is amended by adding a new section 85-d  to
    44  read as follows:
    45    §  85-d.  Additional  credits allowed for the wrongfully convicted. 1.
    46  Additional credit authorized. Additional credits  shall  be  allowed  to
    47  successful claimants under section eight-b of the court of claims act in
    48  competitive  examinations  for original appointment. (a) On all eligible
    49  lists resulting from competitive examinations,  the  names  of  eligible
    50  persons  shall  be entered in the order of their respective final earned
    51  ratings on examinations, with the name of the eligible person  with  the
    52  highest  final earned ratings at the head of such list, provided, howev-
    53  er, that for the purpose of determining final earned ratings, successful
    54  claimants under section eight-b of the court  of  claims  act  shall  be
    55  entitled  to  receive an additional ten points in a competitive examina-
    56  tion for original appointment.

        A. 818                              5
 
     1    (b) Such additional credit shall be added to the final  earned  rating
     2  of such successful claimant after he or she has qualified in the compet-
     3  itive examination and shall be granted only at the time of establishment
     4  of the resulting eligible list.
     5    2. Application for additional credit; proof of eligibility; establish-
     6  ment  of  eligible  list.    Any candidate, believing himself or herself
     7  entitled to additional credit in a competitive examination  as  provided
     8  in  this section, may make application for such additional credit at any
     9  time between the date of his or her application for examination and  the
    10  date of the establishment of the resulting eligible list. Such candidate
    11  shall  be  allowed a period of not less than two months from the date of
    12  the filing of his or her application for examination in which to  estab-
    13  lish  by appropriate documentary proof his or her eligibility to receive
    14  additional credit under this section. At any time after two months  have
    15  elapsed  since  the final date for filing applications for a competitive
    16  examination for original appointment, the eligible list  resulting  from
    17  such  examination  may  be  established, notwithstanding the fact that a
    18  successful claimant who has applied for additional credit has failed  to
    19  establish  his  or  her eligibility to receive such additional credit. A
    20  candidate who fails to establish, by appropriate documentary proof,  his
    21  or  her eligibility to receive additional credit by the time an eligible
    22  list is established shall not thereafter be granted additional credit on
    23  such eligible list.
    24    3. Use of additional credit. (a) Except as otherwise provided in  this
    25  subdivision, no person who has received a permanent original appointment
    26  in the civil service of the state or of any city or civil division ther-
    27  eof  from an eligible list on which he or she was allowed the additional
    28  credit granted by this section as a successful claimant, shall thereaft-
    29  er be entitled to any additional credit under this section as a success-
    30  ful claimant.
    31    (b) Where, at the time of establishment of an eligible list, the posi-
    32  tion of a successful claimant on such list has not been affected by  the
    33  addition  of credits granted under this section, the appointment of such
    34  successful claimant from such eligible list shall not be deemed to  have
    35  been made from an eligible list on which he or she was allowed the addi-
    36  tional credit granted by this section.
    37    (c) If, at the time of appointment from an eligible list, a successful
    38  claimant is in the same relative standing among the eligible persons who
    39  are  willing  to accept appointment as if he or she had not been granted
    40  the additional credits as provided by this section, his or her  appoint-
    41  ment  from  such  eligible persons shall not be deemed to have been made
    42  from an eligible list on which he or she  was  allowed  such  additional
    43  credits.
    44    (d)  Where a successful claimant has been originally appointed from an
    45  eligible list on which he or she was allowed such additional credit, but
    46  such appointment is thereafter terminated  either  at  the  end  of  the
    47  probationary  term  or by resignation at or before the end of the proba-
    48  tionary term, he or she shall not be deemed to have been  appointed,  as
    49  the  case  may  be,  from an eligible list on which he or she is allowed
    50  additional credit, and such appointment shall  not  affect  his  or  her
    51  eligibility for additional credit in other examinations.
    52    4.  Withdrawal of application; election to relinquish additional cred-
    53  it. An application for additional credit in  a  competitive  examination
    54  under  this  section may be withdrawn by the applicant at any time prior
    55  to the establishment of the resulting eligible list. At any time  during
    56  the  term  of existence of an eligible list resulting from a competitive

        A. 818                              6
 
     1  examination in which a successful claimant has received  the  additional
     2  credit  granted  by  this  section,  such successful claimant may elect,
     3  prior to permanent original appointment, to  relinquish  the  additional
     4  credit  theretofore  granted to him or her and accept the lower position
     5  on such eligible list to which he or she would otherwise have been enti-
     6  tled; provided, however, that such election shall thereafter  be  irrev-
     7  ocable.  Such  election shall be in writing and signed by the successful
     8  claimant, and transmitted to the department or the appropriate municipal
     9  civil service commission.
    10    5. Roster. The department and each municipal commission  shall  estab-
    11  lish  and  maintain in its office a roster of all such successful claim-
    12  ants appointed as a result of additional credits granted by this section
    13  to positions under its jurisdiction. The  appointment  of  a  successful
    14  claimant  as  a  result  of  additional  credits  shall  be void if such
    15  successful claimant, prior to such appointment, had been appointed as  a
    16  result of additional credits granted by this section.
    17    §  6. This act shall take effect immediately and shall apply to claims
    18  filed on and after such date.
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