Add §§440.00 & 440.11, amd §§440.10, 440.20, 440.30 & 450.10, rpld §450.10 sub 5, CP L
Relates to motions to vacate judgment; authorizes filing motions to vacate judgment due to a change in law; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea; relates to the requirements of discovery.
STATE OF NEW YORK
________________________________________________________________________
98--A
2021-2022 Regular Sessions
IN ASSEMBLY(Prefiled)
January 6, 2021
___________
Introduced by M. of A. QUART, KIM, TAYLOR, FORREST, BURGOS, REYES, HEVE-
SI, FAHY, O'DONNELL, MITAYNES, ANDERSON, MAMDANI, JACKSON, CLARK,
SIMON, GONZALEZ-ROJAS, PERRY, SEAWRIGHT, CARROLL, GALLAGHER, DARLING,
BURDICK, CRUZ, EPSTEIN, GOTTFRIED, HUNTER, MEEKS, WEPRIN, KELLES,
L. ROSENTHAL, OTIS, FERNANDEZ, COOK, AUBRY, McDONALD, NIOU, DINOWITZ,
SEPTIMO, GIBBS, DICKENS, GLICK, DAVILA -- read once and referred to
the Committee on Codes -- recommitted to the Committee on Codes in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law, in relation to motions to
vacate judgment; and to repeal certain provisions of such law relating
thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding two new
2 sections 440.00 and 440.11 to read as follows:
3 § 440.00 Definition.
4 As used in this article, the term "applicant" means a person previous-
5 ly convicted of a crime who is applying for relief under this article.
6 § 440.11 Motion to vacate judgment; change in the law.
7 1. At any time after the entry of a judgment obtained at trial or by
8 plea, the court in which it was entered may, upon motion of the appli-
9 cant, vacate such judgment upon the ground that:
10 (a) The applicant was convicted of any offense in the state of New
11 York which has been subsequently decriminalized and is thus a legal
12 nullity.
13 (b) There has been a change, whether substantive or procedural, in the
14 law or laws applied in the process leading to the applicant's conviction
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01711-02-2
A. 98--A 2
1 where sufficient reason exists to allow retroactive application of the
2 changed legal standard.
3 2. If the court grants a motion under this section, it must vacate the
4 judgment on the merits, dismiss the accusatory instrument, seal the
5 judgment, and may take such additional action as is appropriate in the
6 circumstances.
7 § 2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
8 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph (h)
9 of subdivision 1, paragraph (a) of subdivision 3 and subdivision 4 as
10 amended and subdivisions 7 and 8 as renumbered by chapter 332 of the
11 laws of 2010, paragraph (i) of subdivision 1 and subdivision 6 as
12 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
13 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
14 vision 1 as amended by chapter 92 of the laws of 2021, paragraphs (b)
15 and (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
16 and subdivision 9 as added by section 4 of part OO of chapter 55 of the
17 laws of 2019, is amended to read as follows:
18 § 440.10 Motion to vacate judgment.
19 1. At any time after the entry of a judgment obtained at trial or by
20 plea, the court in which it was entered may, upon motion of the [defend-
21 ant] applicant, vacate such judgment upon the ground that:
22 (a) The court did not have jurisdiction of the action or of the person
23 of the [defendant] applicant; or
24 (b) The judgment was procured by duress, misrepresentation or fraud on
25 the part of the court or a prosecutor or a person acting for or in
26 behalf of a court or a prosecutor; or
27 (c) [Material evidence] Evidence adduced at a trial resulting in the
28 judgment or that was relied upon by any party as a basis for a plea
29 agreement was false [and was, prior to the entry of the judgment, known
30 by the prosecutor or by the court to be false]; or
31 (d) [Material evidence] Evidence adduced by the people at a trial
32 resulting in the judgment or that was relied upon by any party as a
33 basis for a plea agreement was procured in violation of the [defend-
34 ant's] applicant's rights under the constitution of this state or of the
35 United States; or
36 (e) During the proceedings resulting in the judgment, the [defendant]
37 applicant, by reason of mental disease or defect, was incapable of
38 understanding or participating in such proceedings; or
39 (f) Improper [and prejudicial] conduct not appearing in the record
40 occurred during a trial resulting in the judgment which conduct, if it
41 had appeared in the record, would have [required] made possible a
42 reversal of the judgment upon an appeal therefrom; or
43 (g) New evidence has been discovered [since the entry of a judgment
44 based upon a verdict of guilty after trial, which could not have been
45 produced by the defendant at the trial even with due diligence on his
46 part and which] or become available that, when viewed alone or with
47 other evidence, is of such character as to create a reasonable probabil-
48 ity that had such evidence been received at the trial or discovered
49 prior to trial or plea agreement that the verdict or plea would have
50 been more favorable to the [defendant; provided that a motion based upon
51 such ground must be made with due diligence after the discovery of such
52 alleged new evidence] applicant. Types of new evidence shall include,
53 but not be limited to newly available forensic evidence or evidence that
54 has either been repudiated by the expert who originally provided the
55 opinion at a hearing or trial or that has been undermined by later
56 scientific research or technological advances; or
A. 98--A 3
1 (g-1) [Forensic DNA] In cases involving the forensic testing of
2 evidence performed since the entry of a judgment, [(1) in the case of a
3 defendant convicted after a guilty plea, the court has determined that
4 the defendant has demonstrated a substantial probability that the
5 defendant was actually innocent of the offense of which he or she was
6 convicted, or (2) in the case of a defendant convicted after a trial,]
7 the court has determined that there exists a reasonable probability that
8 the verdict or plea offer would have been more favorable to the [defend-
9 ant] applicant, or the applicant would have rejected the plea offer.
10 (h) The judgment was obtained in violation of a right of the [defend-
11 ant] applicant under the constitution of this state or of the United
12 States, including, but not limited to, a judgment entered, whether upon
13 trial or guilty plea, against an applicant who is actually innocent. An
14 applicant is actually innocent where the applicant proves by a prepon-
15 derance of the evidence that no reasonable jury of the applicant's peers
16 would have found the applicant guilty beyond a reasonable doubt; or
17 (i) The judgment is a conviction where the [defendant's] applicant's
18 participation in the offense was a result of having been a victim of sex
19 trafficking under section 230.34 of the penal law, sex trafficking of a
20 child under section 230.34-a of the penal law, labor trafficking under
21 section 135.35 of the penal law, aggravated labor trafficking under
22 section 135.37 of the penal law, compelling prostitution under section
23 230.33 of the penal law, or trafficking in persons under the Trafficking
24 Victims Protection Act (United States Code, title 22, chapter 78);
25 provided that
26 (i) official documentation of the [defendant's] applicant's status as
27 a victim of sex trafficking, labor trafficking, aggravated labor traf-
28 ficking, compelling prostitution, or trafficking in persons at the time
29 of the offense from a federal, state or local government agency shall
30 create a presumption that the [defendant's] applicant's participation in
31 the offense was a result of having been a victim of sex trafficking,
32 labor trafficking, aggravated labor trafficking, compelling prostitution
33 or trafficking in persons, but shall not be required for granting a
34 motion under this paragraph;
35 (ii) a motion under this paragraph, and all pertinent papers and docu-
36 ments, shall be confidential and may not be made available to any person
37 or public or private [entity] agency except [where] when specifically
38 authorized by the court; and
39 (iii) when a motion is filed under this paragraph, the court may, upon
40 the consent of the petitioner and all of the involved state [and] or
41 local prosecutorial agencies [that prosecuted each matter], consolidate
42 into one proceeding a motion to vacate judgments imposed by distinct or
43 multiple criminal courts; or
44 (j) The judgment is a conviction for [a class A or unclassified] any
45 misdemeanor entered prior to the effective date of this paragraph [and
46 satisfies the ground prescribed in paragraph (h) of this subdivision]
47 that resulted in ongoing collateral consequences, including potential or
48 actual immigration consequences. There shall be a rebuttable presump-
49 tion that a conviction by plea to such an offense was not knowing,
50 voluntary and intelligent, [based on ongoing collateral consequences,
51 including potential or actual immigration consequences, and there] and
52 thus rendered the plea constitutionally defective pursuant to paragraph
53 (h) of this subdivision. There shall be a rebuttable presumption that a
54 conviction by verdict to such an offense constitutes cruel and unusual
55 punishment under section five of article one of the state constitution
A. 98--A 4
1 based on such consequences and thus rendered the verdict constitu-
2 tionally defective pursuant to paragraph (h) of this subdivision; or
3 (j-1) The judgment is a conviction for a class D or E felony entered
4 prior to the effective date of this paragraph for which the sentence
5 imposed was one year, and such sentence resulted in ongoing collateral
6 consequences, including potential or actual immigration consequences.
7 There shall be a rebuttable presumption that a conviction by plea to
8 such an offense was not knowing, voluntary and intelligent, and thus
9 rendered the plea constitutionally defective pursuant to paragraph (h)
10 of this subdivision. There shall be a rebuttable presumption that a
11 conviction by verdict to such an offense constitutes cruel and unusual
12 punishment under section five of article one of the state constitution
13 based on such consequences, and thus rendered the verdict constitu-
14 tionally defective pursuant to paragraph (h) of this subdivision; or
15 (k) The judgment occurred prior to the effective date of the laws of
16 two thousand [twenty-one] twenty-two that amended this paragraph and is
17 a conviction for an offense as defined in [subparagraphs] subparagraph
18 (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of
19 section 160.50 of this part, or a misdemeanor under the former article
20 two hundred twenty-one of the penal law, in which case the court shall
21 presume that a conviction by plea for the aforementioned offenses was
22 not knowing, voluntary and intelligent if it has severe or ongoing
23 consequences, including but not limited to potential or actual immi-
24 gration consequences, and shall presume that a conviction by verdict for
25 the aforementioned offenses constitutes cruel and unusual punishment
26 under section five of article one of the state constitution, based on
27 those consequences. The people may rebut these presumptions[.]; or
28 (l) Any offense in the state of New York that an intermediate appel-
29 late court, court of appeals, or United States federal court has deemed
30 in violation of the constitution of this state or of the United States,
31 or any other right under state or federal law.
32 2. Notwithstanding the provisions of subdivision one, the court [must]
33 may deny a motion to vacate a judgment when:
34 (a) The ground or issue raised upon the motion was previously deter-
35 mined on the merits upon an appeal from the judgment, unless since the
36 time of such appellate determination there has been a retroactively
37 effective change in the law controlling such issue. However, if all of
38 the evidence currently before the court was not duly considered previ-
39 ously by the court, the court shall grant the motion or order the hear-
40 ing; or
41 (b) The judgment is, at the time of the motion, appealable or pending
42 on appeal, and sufficient facts appear on the record with respect to the
43 ground or issue raised upon the motion to permit adequate review thereof
44 upon such an appeal unless the issue raised upon such motion is ineffec-
45 tive assistance of counsel. This paragraph shall not apply to a motion
46 under paragraph (i), (j), (k) or (l) of subdivision one of this section;
47 or
48 (c) [Although sufficient facts appear on the record of the proceedings
49 underlying the judgment to have permitted, upon appeal from such judg-
50 ment, adequate review of the ground or issue raised upon the motion, no
51 such appellate review or determination occurred owing to the defendant's
52 unjustifiable failure to take or perfect an appeal during the prescribed
53 period or to his or her unjustifiable failure to raise such ground or
54 issue upon an appeal actually perfected by him or her unless the issue
55 raised upon such motion is ineffective assistance of counsel; or
A. 98--A 5
1 (d)] The ground or issue raised relates solely to the validity of the
2 sentence and not to the validity of the conviction. In such case, the
3 court shall deem the motion to have been made pursuant to section 440.20
4 of this article.
5 [3. Notwithstanding the provisions of subdivision one, the court may
6 deny a motion to vacate a judgment when:
7 (a) Although facts in support of the ground or issue raised upon the
8 motion could with due diligence by the defendant have readily been made
9 to appear on the record in a manner providing adequate basis for review
10 of such ground or issue upon an appeal from the judgment, the defendant
11 unjustifiably failed to adduce such matter prior to sentence and the
12 ground or issue in question was not subsequently determined upon appeal.
13 This paragraph does not apply to a motion based upon deprivation of the
14 right to counsel at the trial or upon failure of the trial court to
15 advise the defendant of such right, or to a motion under paragraph (i)
16 of subdivision one of this section; or
17 (b) The ground or issue raised upon the motion was previously deter-
18 mined on the merits upon a prior motion or proceeding in a court of this
19 state, other than an appeal from the judgment, or upon a motion or
20 proceeding in a federal court; unless since the time of such determi-
21 nation there has been a retroactively effective change in the law
22 controlling such issue; or
23 (c) Upon a previous motion made pursuant to this section, the defend-
24 ant was in a position adequately to raise the ground or issue underlying
25 the present motion but did not do so.]
26 (d) Although the court may deny the motion under any of the circum-
27 stances specified in this subdivision, in the interest of justice and
28 for good cause shown it may in its discretion grant the motion if it is
29 otherwise meritorious and vacate the judgment.
30 [4.] 3. If the court grants the motion, it must, except as provided in
31 subdivision [five] four or [six] five of this section, vacate the judg-
32 ment, and must either:
33 (a) dismiss and seal the accusatory instrument, or
34 (b) order a new trial, or
35 (c) take such other action as is appropriate in the circumstances.
36 [5.] 4. Upon granting the motion upon the ground, as prescribed in
37 paragraph (g) of subdivision one, that newly discovered evidence creates
38 a probability that had such evidence been received at the trial the
39 verdict would have been more favorable to the [defendant] applicant in
40 that the conviction would have been for a lesser offense than the one
41 contained in the verdict, the court may either:
42 (a) Vacate the judgment and order a new trial; or
43 (b) With the consent of the people, modify the judgment by reducing it
44 to one of conviction for such lesser offense. In such case, the court
45 must re-sentence the [defendant] applicant accordingly.
46 [6.] 5. If the court grants a motion under [paragraph (i) or] para-
47 graph [(k)] (h), (i), (j), (k) or (l) of subdivision one of this
48 section, it must vacate the judgment [and] on the merits, dismiss the
49 accusatory instrument, seal the judgment, and may take such additional
50 action as is appropriate in the circumstances. [In the case of a motion
51 granted under paragraph (i) of subdivision one of this section, the
52 court must vacate the judgment on the merits because the defendant's
53 participation in the offense was a result of having been a victim of
54 trafficking.
55 7.] 6. Upon a new trial resulting from an order vacating a judgment
56 pursuant to this section, the indictment is deemed to contain all the
A. 98--A 6
1 counts and to charge all the offenses which it contained and charged at
2 the time the previous trial was commenced, regardless of whether any
3 count was dismissed by the court in the course of such trial, except (a)
4 those upon or of which the [defendant] applicant was acquitted or deemed
5 to have been acquitted, and (b) those dismissed by the order vacating
6 the judgment, and (c) those previously dismissed by an appellate court
7 upon an appeal from the judgment, or by any court upon a previous post-
8 judgment motion.
9 [8.] 7. Upon an order which vacates a judgment based upon a plea of
10 guilty to an accusatory instrument or a part thereof, but which does not
11 dismiss the entire accusatory instrument, the criminal action is, in the
12 absence of an express direction to the contrary, restored to its
13 [prepleading] pre-pleading status and the accusatory instrument is
14 deemed to contain all the counts and to charge all the offenses which it
15 contained and charged at the time of the entry of the plea, except those
16 subsequently dismissed under circumstances specified in paragraphs (b)
17 and (c) of subdivision six. Where the plea of guilty was entered and
18 accepted, pursuant to subdivision three of section 220.30, upon the
19 condition that it constituted a complete disposition not only of the
20 accusatory instrument underlying the judgment vacated but also of one or
21 more other accusatory instruments against the [defendant] applicant then
22 pending in the same court, the order of vacation completely restores
23 such other accusatory instruments; and such is the case even though such
24 order dismisses the main accusatory instrument underlying the judgment.
25 [9.] 8. Upon granting of a motion pursuant to paragraph (j) of subdi-
26 vision one of this section, the court [may] must vacate the judgment and
27 may, in addition to the remedies in subdivision three of this section,
28 either:
29 (a) With the consent of the people, [vacate the judgment or] modify
30 the judgment by reducing it to one of conviction for a lesser offense or
31 allow the applicant to replead to a disposition agreed upon by the
32 parties; or
33 (b) [Vacate the judgment and order a new trial wherein the defendant
34 enters] Permit the applicant to enter a plea to the same offense [in
35 order to permit the court to] and resentence the [defendant] applicant
36 in accordance with the amendatory provisions of subdivision one-a of
37 section 70.15 of the penal law.
38 9. Upon granting of a motion pursuant to paragraph j-1 of subdivision
39 one of this section, the court must vacate the judgment and permit the
40 applicant to enter a plea to the same offense in order to permit the
41 court to resentence the applicant to three hundred sixty-four days.
42 10. Notwithstanding any other provision of this section, the court
43 must order a hearing and address the merits of any claim for relief when
44 the applicant asserts that, in light of all available evidence, there
45 exists a colorable claim that he or she is actually innocent. When the
46 applicant raises an actual innocence claim based on, in whole or part,
47 new evidence of actual innocence, the court may not summarily deny the
48 motion on the ground that the applicant previously moved for relief
49 under this article.
50 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as
51 amended by chapter 1 of the laws of 1995, is amended to read as follows:
52 § 440.20 Motion to set aside sentence; by [defendant] applicant.
53 1. At any time after the entry of a judgment, the court in which the
54 judgment was entered may, upon motion of the [defendant] applicant, set
55 aside the sentence upon the ground that it was unauthorized, illegally
56 imposed, exceeded the maximum allowed by law, obtained or imposed in
A. 98--A 7
1 violation of the defendant's constitutional rights, or was otherwise
2 invalid as a matter of law. Where the judgment includes a sentence of
3 death, the court may also set aside the sentence upon any of the grounds
4 set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of
5 section 440.10 as applied to a separate sentencing proceeding under
6 section 400.27, provided, however, that to the extent the ground or
7 grounds asserted include one or more of the aforesaid paragraphs of
8 subdivision one of section 440.10, the court must also apply [subdivi-
9 sions] subdivision two [and three] of section 440.10, other than para-
10 graph [(d)] (c) of [subdivision two of] such [section] subdivision, in
11 determining the motion. In the event the court enters an order granting
12 a motion to set aside a sentence of death under this section, the court
13 must either direct a new sentencing proceeding in accordance with
14 section 400.27 or, to the extent that the defendant cannot be resen-
15 tenced to death consistent with the laws of this state or the constitu-
16 tion of this state or of the United States, resentence the defendant to
17 life imprisonment without parole or to a sentence of imprisonment for
18 the class A-I felony of murder in the first degree other than a sentence
19 of life imprisonment without parole. Upon granting the motion upon any
20 of the grounds set forth in the aforesaid paragraphs of subdivision one
21 of section 440.10 and setting aside the sentence, the court must afford
22 the people a reasonable period of time, which shall not be less than ten
23 days, to determine whether to take an appeal from the order setting
24 aside the sentence of death. The taking of an appeal by the people stays
25 the effectiveness of that portion of the court's order that directs a
26 new sentencing proceeding.
27 2. Notwithstanding the provisions of subdivision one, the court
28 [must] may deny such a motion when the ground or issue raised thereupon
29 was previously determined on the merits upon an appeal from the judgment
30 or sentence, unless since the time of such appellate determination there
31 has been a retroactively effective change in the law controlling such
32 issue. However, if all of the evidence currently before the court was
33 not duly considered previously by the court, the court shall not deny
34 the motion to vacate and instead shall order a hearing or grant the
35 motion. Even if the court has already considered all of the evidence
36 currently before the court, the court in the interest of justice and for
37 good cause shown may grant the motion if it is otherwise meritorious.
38 3. [Notwithstanding the provisions of subdivision one, the court may
39 deny such a motion when the ground or issue raised thereupon was previ-
40 ously determined on the merits upon a prior motion or proceeding in a
41 court of this state, other than an appeal from the judgment, or upon a
42 prior motion or proceeding in a federal court, unless since the time of
43 such determination there has been a retroactively effective change in
44 the law controlling such issue. Despite such determination, however,
45 the court in the interest of justice and for good cause shown, may in
46 its discretion grant the motion if it is otherwise meritorious.
47 4.] An order setting aside a sentence pursuant to this section does
48 not affect the validity or status of the underlying conviction, and
49 after entering such an order the court must resentence the [defendant]
50 applicant in accordance with the law.
51 § 4. Section 440.30 of the criminal procedure law, subdivisions 1 and
52 1-a as amended by chapter 19 of the laws of 2012 and the opening para-
53 graph of paragraph (b) of subdivision 1 as amended by section 10 of part
54 LLL of chapter 59 of the laws of 2019, is amended to read as follows:
55 § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
A. 98--A 8
1 1. (a) [A] An application for a motion to vacate a judgment pursuant
2 to section 440.10 or 440.11 of this article and a motion to set aside a
3 sentence pursuant to section 440.20 of this article must be made in
4 writing by the applicant or their counsel to the judge or justice who
5 imposed the original sentence and upon reasonable notice to the people.
6 [Upon the motion, a defendant] If, at the time of such person's request
7 to apply for relief pursuant to this article, the original sentencing
8 judge or justice no longer works in the court in which the original
9 sentence was imposed, then the request shall be randomly assigned to
10 another judge or justice of the court in which the original sentence was
11 imposed.
12 (b) Upon the submission of an application for relief under this arti-
13 cle, unless the applicant is represented by counsel or affirmatively
14 states an intention to represent themselves pro se, the court shall
15 assign defense counsel if the applicant is indigent or otherwise quali-
16 fies for free representation in accordance with the provisions of subdi-
17 vision one of section seven hundred seventeen and subdivision four of
18 section seven hundred twenty-two of the county law and the related
19 provisions of article eighteen-A of such law.
20 (c) Upon making a determination as to assignment of counsel, the court
21 shall also promptly order the disclosure of discovery to the person
22 applying for relief and his or her counsel. The order of disclosure of
23 discovery shall include that:
24 (i) The people produce all items and information that relate to the
25 subject matter of the case and are in the possession, custody and
26 control of the prosecution or persons under their direction or control
27 and make available for inspection any physical evidence secured in
28 connection with the investigation or prosecution of the applicant,
29 including all evidence that would be discoverable pursuant to section
30 245.20 of this part; and
31 (ii) The applicant's prior trial and appellate counsel shall make
32 available to the applicant or his or her counsel their complete files
33 relating to the case; and
34 (iii) Court clerks and probation departments shall make available to
35 the applicant or his or her counsel the court files or probation records
36 pertaining to the case; and
37 (iv) Nothing in this section shall preclude the court from conducting
38 an in camera inspection of evidence and issuing a protective order
39 pursuant to section 245.70 of this part at the request of the prose-
40 cution or defense.
41 (v) The discovery order will require that the people and prior defense
42 counsel turn over all relevant discovery to the person applying for
43 relief or their counsel no later than thirty days from the issuance of
44 the court's discovery order.
45 (d) (i) An applicant who is in a position adequately to raise more
46 than one ground should raise every such ground upon which he or she
47 intends to challenge the judgment or sentence. If the motion is based
48 upon the existence or occurrence of facts, the motion papers [must] may
49 contain sworn allegations thereof, whether by the [defendant] applicant
50 or by another person or persons. Such sworn allegations may be based
51 upon personal knowledge of the affiant or upon information and belief,
52 provided that in the latter event the affiant must state the sources of
53 such information and the grounds of such belief. The [defendant] appli-
54 cant may further submit documentary evidence or information supporting
55 or tending to support the allegations of the moving papers.
A. 98--A 9
1 (ii) The people may file with the court, and in such case must serve a
2 copy thereof upon the [defendant] applicant or his or her counsel, if
3 any, an answer denying or admitting any or all of the allegations of the
4 motion papers, and may further submit documentary evidence or informa-
5 tion refuting or tending to refute such allegations.
6 (iii) After all papers of both parties have been filed, and after all
7 documentary evidence or information, if any, has been submitted, the
8 court must consider the same for the purpose of ascertaining whether the
9 motion is determinable without a hearing to resolve questions of fact.
10 [(b) In conjunction with the filing or consideration of a motion to
11 vacate a judgment pursuant to section 440.10 of this article by a
12 defendant convicted after a trial, in cases where the court has ordered
13 an evidentiary hearing upon such motion, the court may order that the
14 people produce or make available for inspection property in its
15 possession, custody, or control that was secured in connection with the
16 investigation or prosecution of the defendant upon credible allegations
17 by the defendant and a finding by the court that such property, if
18 obtained, would be probative to the determination of defendant's actual
19 innocence, and that the request is reasonable. The court shall deny or
20 limit such a request upon a finding that such a request, if granted,
21 would threaten the integrity or chain of custody of property or the
22 integrity of the processes or functions of a laboratory conducting DNA
23 testing, pose a risk of harm, intimidation, embarrassment, reprisal, or
24 other substantially negative consequences to any person, undermine the
25 proper functions of law enforcement including the confidentiality of
26 informants, or on the basis of any other factor identified by the court
27 in the interests of justice or public safety. The court shall further
28 ensure that any property produced pursuant to this paragraph is subject
29 to a protective order, where appropriate. The court shall deny any
30 request made pursuant to this paragraph where:
31 (i) (1) the defendant's motion pursuant to section 440.10 of this
32 article does not seek to demonstrate his or her actual innocence of the
33 offense or offenses of which he or she was convicted that are the
34 subject of the motion, or (2) the defendant has not presented credible
35 allegations and the court has not found that such property, if obtained,
36 would be probative to the determination of the defendant's actual inno-
37 cence and that the request is reasonable;
38 (ii) the defendant has made his or her motion after five years from
39 the date of the judgment of conviction; provided, however, that this
40 limitation period shall be tolled for five years if the defendant is in
41 custody in connection with the conviction that is the subject of his or
42 her motion, and provided further that, notwithstanding such limitation
43 periods, the court may consider the motion if the defendant has shown:
44 (A) that he or she has been pursuing his or her rights diligently and
45 that some extraordinary circumstance prevented the timely filing of the
46 motion; (B) that the facts upon which the motion is predicated were
47 unknown to the defendant or his or her attorney and could not have been
48 ascertained by the exercise of due diligence prior to the expiration of
49 the statute of limitations; or (C) considering all circumstances of the
50 case including but not limited to evidence of the defendant's guilt, the
51 impact of granting or denying such motion upon public confidence in the
52 criminal justice system, or upon the safety or welfare of the community,
53 and the defendant's diligence in seeking to obtain the requested proper-
54 ty or related relief, the interests of justice would be served by
55 considering the motion;
A. 98--A 10
1 (iii) the defendant is challenging a judgment convicting him or her of
2 an offense that is not a felony defined in section 10.00 of the penal
3 law; or
4 (iv) upon a finding by the court that the property requested in this
5 motion would be available through other means through reasonable efforts
6 by the defendant to obtain such property.
7 1-a.] 2. (a) [(1)] (i) Where the [defendant's] applicant's motion
8 requests the performance of a forensic DNA test on specified evidence,
9 and upon the court's determination that any evidence containing deoxyri-
10 bonucleic acid ("DNA") was secured in connection with the trial or the
11 plea resulting in the judgment, the court shall grant the application
12 for forensic DNA testing of such evidence [upon its determination that
13 if a DNA test had been conducted on such evidence, and if the results
14 had been admitted in the trial resulting in the judgment, there exists a
15 reasonable probability that the verdict would have been more favorable
16 to the defendant.
17 (2) Where the defendant's motion for forensic DNA testing of specified
18 evidence is made following a plea of guilty and entry of judgment there-
19 on convicting him or her of: (A) a homicide offense defined in article
20 one hundred twenty-five of the penal law, any felony sex offense defined
21 in article one hundred thirty of the penal law, a violent felony offense
22 as defined in paragraph (a) of subdivision one of section 70.02 of the
23 penal law, or (B) any other felony offense to which he or she pled guil-
24 ty after being charged in an indictment or information in superior court
25 with one or more of the offenses listed in clause (A) of this subpara-
26 graph, then the court shall grant such a motion upon its determination
27 that evidence containing DNA was secured in connection with the investi-
28 gation or prosecution of the defendant, and if a DNA test had been
29 conducted on such evidence and the results had been known to the parties
30 prior to the entry of the defendant's plea and judgment thereon, there
31 exists a substantial probability that the evidence would have estab-
32 lished the defendant's actual innocence of the offense or offenses that
33 are the subject of the defendant's motion; provided, however, that:
34 (i) the court shall consider whether the defendant had the opportunity
35 to request such testing prior to entering a guilty plea, and, where it
36 finds that the defendant had such opportunity and unjustifiably failed
37 to do so, the court may deny such motion; and
38 (ii) a court shall deny the defendant's motion for forensic DNA test-
39 ing where the defendant has made his or her motion more than five years
40 after entry of the judgment of conviction; except that the limitation
41 period may be tolled if the defendant has shown: (A) that he or she has
42 been pursuing his or her rights diligently and that some extraordinary
43 circumstance prevented the timely filing of the motion for forensic DNA
44 testing; (B) that the facts upon which the motion is predicated were
45 unknown to the defendant or his or her attorney and could not have been
46 ascertained by the exercise of due diligence prior to the expiration of
47 this statute of limitations; or (C) considering all circumstances of the
48 case including but not limited to evidence of the defendant's guilt, the
49 impact of granting or denying such motion upon public confidence in the
50 criminal justice system, or upon the safety or welfare of the community,
51 and the defendant's diligence in seeking to obtain the requested proper-
52 ty or related relief, the interests of justice would be served by toll-
53 ing such limitation period].
54 (ii) Where the applicant's motion for relief requests the performance
55 of any other testing of forensic evidence or any physical evidence
56 secured in the case, the judge shall grant the application for testing
A. 98--A 11
1 of such evidence, unless there is no reasonable probability that the
2 testing of this evidence could result in a different or improved outcome
3 for the person applying for relief.
4 (b) (i) In conjunction with the filing of a motion under this subdivi-
5 sion, the court may direct the people to provide the [defendant] appli-
6 cant and his or her counsel with information in the possession of the
7 people concerning the current physical location of the specified
8 evidence and if the specified evidence no longer exists or the physical
9 location of the specified evidence is unknown, a representation to that
10 effect and information and documentary evidence in the possession of the
11 people concerning the last known physical location of such specified
12 evidence.
13 (ii) If there is a finding by the court that the specified evidence no
14 longer exists or the physical location of such specified evidence is
15 unknown, [such information in and of itself shall not be a factor from
16 which any inference unfavorable to the people may be drawn by the court
17 in deciding a motion under this section] the court shall grant the
18 applicant's motion and vacate the judgment.
19 (iii) The court, on motion of the [defendant] applicant, may also
20 issue a subpoena duces tecum directing a public or private hospital,
21 laboratory or other entity to produce such specified evidence in its
22 possession and/or information and documentary evidence in its possession
23 concerning the location and status of such specified evidence.
24 (c) In response to a motion under this paragraph, upon notice to the
25 parties and to the entity required to perform the search the court may
26 order an entity that has access to the combined DNA index system
27 ("CODIS") or its successor system to compare a DNA profile obtained from
28 probative biological material gathered in connection with the investi-
29 gation or prosecution of the [defendant] applicant against DNA databanks
30 by keyboard searches, or a similar method that does not involve upload-
31 ing, upon a court's determination that (1) such profile complies with
32 federal bureau of investigation or state requirements, whichever are
33 applicable and as such requirements are applied to law enforcement agen-
34 cies seeking such a comparison, and that the data meet state DNA index
35 system and/or national DNA index system criteria as such criteria are
36 applied to law enforcement agencies seeking such a comparison and (2) if
37 such comparison had been conducted, [and if the results had been admit-
38 ted in the trial resulting in the judgment,] a reasonable probability
39 exists that the verdict would have been more favorable to the [defend-
40 ant, or in a case involving a plea of guilty, if the results had been
41 available to the defendant prior to the plea, a reasonable probability
42 exists that the conviction would not have resulted] applicant. For
43 purposes of this subdivision, a "keyboard search" shall mean a search of
44 a DNA profile against the databank in which the profile that is searched
45 is not uploaded to or maintained in the databank.
46 [2. If it appears by conceded or uncontradicted allegations of the
47 moving papers or of the answer, or by unquestionable documentary proof,
48 that there are circumstances which require denial thereof pursuant to
49 subdivision two of section 440.10 or subdivision two of section 440.20,
50 the court must summarily deny the motion. If it appears that there are
51 circumstances authorizing, though not requiring, denial thereof pursuant
52 to subdivision three of section 440.10 or subdivision three of section
53 440.20, the court may in its discretion either (a) summarily deny the
54 motion, or (b) proceed to consider the merits thereof.]
A. 98--A 12
1 3. Upon considering the merits of the motion, the court must grant it
2 without conducting a hearing and vacate the judgment or set aside the
3 sentence, as the case may be, if:
4 (a) The moving papers allege a ground constituting legal basis for the
5 motion; and
6 (b) Such ground, if based upon the existence or occurrence of facts,
7 is supported by sworn allegations thereof; and
8 (c) The sworn allegations of fact essential to support the motion are
9 either conceded by the people to be true or are conclusively substanti-
10 ated by unquestionable documentary proof.
11 4. Upon considering the merits of the motion, the court may deny it
12 without conducting a hearing if:
13 (a) The moving papers do not allege any ground constituting legal
14 basis for the motion; or
15 (b) [The motion is based upon the existence or occurrence of facts and
16 the moving papers do not contain sworn allegations substantiating or
17 tending to substantiate all the essential facts, as required by subdivi-
18 sion one; or
19 (c)] An allegation of fact essential to support the motion is conclu-
20 sively refuted by unquestionable documentary proof; or
21 [(d)] (c) An allegation of fact essential to support the motion (i) is
22 contradicted by a court record or other official document[, or is made
23 solely by the defendant and is unsupported by any other affidavit or
24 evidence,] and (ii) under these and all the other circumstances attend-
25 ing the case, there is no reasonable possibility that such allegation is
26 true.
27 5. If the court does not determine the motion pursuant to subdivisions
28 two, three or four, it must conduct a hearing and make findings of fact
29 essential to the determination thereof. The [defendant] applicant has a
30 right to be present at such hearing but may waive such right in writing.
31 If he or she does not so waive it and if he or she is confined in a
32 prison or other institution of this state, the court must cause him or
33 her to be produced at such hearing.
34 6. At such a hearing, the [defendant] applicant has the burden of
35 proving by a preponderance of the evidence every fact essential to
36 support the motion. At the hearing, defense counsel shall receive a
37 daily copy of the hearing minutes.
38 7. Regardless of whether a hearing was conducted, the court, upon
39 determining the motion, must set forth on the record its findings of
40 fact, its conclusions of law and the reasons for its determination.
41 § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
42 amended by chapter 671 of the laws of 1971 and as renumbered by chapter
43 516 of the laws of 1986, is amended to read as follows:
44 4. An order, entered pursuant to [section 440.40, setting aside a
45 sentence other than one of death, upon motion of the People] article
46 four hundred forty of this title, shall be authorized to an intermediate
47 appellate court as a matter of right.
48 § 6. Subdivision 5 of section 450.10 of the criminal procedure law is
49 REPEALED.
50 § 7. Severability. If any provision of this act, or any application of
51 any provision of this act, is held to be invalid, that shall not affect
52 the validity or effectiveness of any other provision of this act, or of
53 any other application of any provision of this act, which can be given
54 effect without that provision or application; and to that end, the
55 provisions and applications of this act are severable.
A. 98--A 13
1 § 8. This act shall take effect on the sixtieth day after it shall
2 have become a law; provided, however, that paragraphs (b) and (c) of
3 subdivision 1 of section 440.30 of the criminal procedure law as added
4 by section four of this act shall take effect one year after it shall
5 have become a law.
