Establishes the actual innocence justice act of 2012; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so.
STATE OF NEW YORK
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729--A
2011-2012 Regular Sessions
IN SENATE(Prefiled)
January 5, 2011
___________
Introduced by Sen. PERALTA -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes -- recommitted to
the Committee on Codes in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the criminal procedure law, in relation to establishing
the actual innocence justice act of 2012
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known as the "actual inno-
2 cence justice act of 2012".
3 § 2. Subparagraph (ii) of paragraph (i) of subdivision 1 of section
4 440.10 of the criminal procedure law, as added by chapter 332 of the
5 laws of 2010, is amended and a new paragraph (j) is added to read as
6 follows:
7 (ii) official documentation of the defendant's status as a victim of
8 sex trafficking or trafficking in persons at the time of the offense
9 from a federal, state or local government agency shall create a presump-
10 tion that the defendant's participation in the offense was a result of
11 having been a victim of sex trafficking or trafficking in persons, but
12 shall not be required for granting a motion under this paragraph[.]; or
13 (j) The defendant is actually innocent of the crime or crimes of which
14 he or she was convicted. For purposes of this paragraph, a defendant is
15 actually innocent where it is established by clear and convincing
16 evidence that no trier of fact would have convicted the defendant under
17 a reasonable doubt standard and in light of all available evidence.
18 § 3. Subdivision 4 of section 440.10 of the criminal procedure law, as
19 amended by chapter 332 of the laws of 2010, is amended to read as
20 follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04653-03-2
S. 729--A 2
1 4. If the court grants the motion, it must, except as provided in
2 subdivision five or six of this section, vacate the judgment, and must
3 dismiss the accusatory instrument, or order a new trial, or take such
4 other action as is appropriate in the circumstances. If the defendant
5 has established by clear and convincing evidence that he or she is actu-
6 ally innocent, in that no trier of fact would have convicted the defend-
7 ant of the offense or offenses under a reasonable doubt standard and in
8 light of all available evidence, the court shall dismiss the accusatory
9 instrument.
10 § 4. Section 440.10 of the criminal procedure law is amended by adding
11 a new subdivision 9 to read as follows:
12 9. Notwithstanding any other provision of this section, the court must
13 address the merits of any claim for relief when the claimant can show,
14 in light of all available evidence, that there exists a reasonable prob-
15 ability that he or she is actually innocent.
16 § 5. This act shall take effect immediately.
