Add §§440.00 & 440.11, amd §§440.10, 440.20, 440.30 & 450.10, rpld §450.10, sub 5, CP L; amd §216, Judy L
Relates to motions to vacate judgment; authorizes filing motions to vacate judgment for a conviction that was subsequently decriminalized; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea.
STATE OF NEW YORK
________________________________________________________________________
7422--A
2025-2026 Regular Sessions
IN ASSEMBLY
March 25, 2025
___________
Introduced by M. of A. WALKER, KIM, TAYLOR, FORREST, REYES, HEVESI,
MITAYNES, ANDERSON, MAMDANI, JACKSON, CLARK, SIMON, GONZALEZ-ROJAS,
SEAWRIGHT, R. CARROLL, GALLAGHER, BURDICK, CRUZ, EPSTEIN, HUNTER,
MEEKS, WEPRIN, KELLES, ROSENTHAL, OTIS, COOK, DINOWITZ, SEPTIMO,
GIBBS, GLICK, DAVILA, HYNDMAN, RAMOS, TAPIA, LUNSFORD, SIMONE, RAGA,
SHIMSKY, ALVAREZ, DE LOS SANTOS, BORES, LEVENBERG -- read once and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law and the judiciary law, in
relation to motions to vacate judgment; and to repeal certain
provisions of the criminal procedure 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 conviction upon the ground that the applicant was
10 convicted of any offense in the state of New York which has been subse-
11 quently decriminalized and is thus a legal nullity.
12 2. If the court grants a motion under this section, it shall vacate
13 the conviction on the merits, dismiss the accusatory instrument, seal
14 the conviction, and may take such additional action as is appropriate in
15 the circumstances.
16 § 2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
17 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph (h)
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00248-04-5
A. 7422--A 2
1 of subdivision 1, paragraph (a) of subdivision 3 and subdivision 4 as
2 amended and subdivisions 7 and 8 as renumbered by chapter 332 of the
3 laws of 2010, paragraph (i) of subdivision 1 and subdivision 6 as
4 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
5 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
6 vision 1 as amended by chapter 92 of the laws of 2021, paragraphs (b)
7 and (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
8 and subdivision 9 as added by section 4 of part OO of chapter 55 of the
9 laws of 2019, is amended to read as follows:
10 § 440.10 Motion to vacate judgment.
11 1. At any time after the entry of a judgment obtained at trial or by
12 plea, the court in which it was entered may, upon motion of the [defend-
13 ant] applicant, vacate such judgment upon the ground that:
14 (a) The court did not have jurisdiction of the action or of the person
15 of the [defendant] applicant; or
16 (b) The judgment was procured by duress, misrepresentation or fraud on
17 the part of the court or a prosecutor or a person acting for or in
18 behalf of a court or a prosecutor; or
19 (c) [Material evidence adduced at a trial] Evidence that was likely
20 relied upon by a fact finder resulting in the judgment at trial or that
21 was likely relied upon by any party as a basis for a plea agreement was
22 false [and was, prior to the entry of the judgment, known by the prose-
23 cutor or by the court to be false]; or
24 (d) [Material evidence adduced by the people at a trial] Evidence that
25 was likely relied upon by a fact finder resulting in the judgment at
26 trial or that was likely relied upon by any party as a basis for a plea
27 agreement was procured in violation of the [defendant's] applicant's
28 rights under the constitution of this state or of the United States; or
29 (e) During the proceedings resulting in the judgment, the [defendant]
30 applicant, by reason of mental disease or defect, was incapable of
31 understanding or participating in such proceedings; or
32 (f) Improper [and prejudicial] conduct not appearing in the record
33 occurred during a trial resulting in the judgment which conduct, if it
34 had appeared in the record, would have [required] made possible a
35 reversal of the judgment upon an appeal therefrom; or
36 (g) New evidence has been discovered [since the entry of a judgment
37 based upon a verdict of guilty after trial, which could not have been
38 produced by the defendant at the trial even with due diligence on his
39 part and which] or become available that, when viewed alone or with
40 other evidence, is of such character as to create a reasonable probabil-
41 ity that had such evidence been received at the trial or discovered
42 prior to trial or plea agreement that the verdict or plea would have
43 been more favorable to the [defendant; provided that a motion based upon
44 such ground must be made with due diligence after the discovery of such
45 alleged new evidence] applicant. Types of new evidence shall include,
46 but not be limited to newly available forensic evidence or evidence that
47 has either been repudiated by the expert who originally provided the
48 opinion at a hearing or trial or that has been undermined by later
49 scientific research or technological advances; or
50 (g-1) [Forensic DNA] In cases involving the forensic testing of
51 evidence performed since the entry of a judgment, [(1) in the case of a
52 defendant convicted after a guilty plea, the court has determined that
53 the defendant has demonstrated a substantial probability that the
54 defendant was actually innocent of the offense of which he or she was
55 convicted, or (2) in the case of a defendant convicted after a trial,]
56 the court has determined that there exists a reasonable probability that
A. 7422--A 3
1 the verdict or plea offer would have been more favorable to the [defend-
2 ant] applicant, or the applicant would have rejected the plea offer.
3 (h) The judgment was obtained in violation of a right of the [defend-
4 ant] applicant under the constitution of this state or of the United
5 States, including, but not limited to, a judgment entered, whether upon
6 trial or guilty plea, against an applicant who is actually innocent. An
7 applicant is actually innocent where the applicant proves by a prepon-
8 derance of the evidence that no reasonable jury of the applicant's peers
9 would have found the applicant guilty beyond a reasonable doubt; or
10 (i) The judgment is a conviction where the [defendant's] applicant's
11 participation in the offense was a result of having been a victim of sex
12 trafficking under section 230.34 of the penal law, sex trafficking of a
13 child under section 230.34-a of the penal law, labor trafficking under
14 section 135.35 of the penal law, aggravated labor trafficking under
15 section 135.37 of the penal law, compelling prostitution under section
16 230.33 of the penal law, or trafficking in persons under the Trafficking
17 Victims Protection Act (United States Code, title 22, chapter 78);
18 provided that
19 (i) official documentation of the [defendant's] applicant's status as
20 a victim of sex trafficking, labor trafficking, aggravated labor traf-
21 ficking, compelling prostitution, or trafficking in persons at the time
22 of the offense from a federal, state or local government agency shall
23 create a presumption that the [defendant's] applicant's participation in
24 the offense was a result of having been a victim of sex trafficking,
25 labor trafficking, aggravated labor trafficking, compelling prostitution
26 or trafficking in persons, but shall not be required for granting a
27 motion under this paragraph;
28 (ii) a motion under this paragraph, and all pertinent papers and docu-
29 ments, shall be confidential and may not be made available to any person
30 or public or private [entity] agency except [where] when specifically
31 authorized by the court; and
32 (iii) when a motion is filed under this paragraph, the court may, upon
33 the consent of the petitioner and all of the involved state [and] or
34 local prosecutorial agencies [that prosecuted each matter], consolidate
35 into one proceeding a motion to vacate judgments imposed by distinct or
36 multiple criminal courts; or
37 (j) The judgment is a conviction for [a class A or unclassified] any
38 misdemeanor entered prior to the effective date of this paragraph and
39 satisfies the ground prescribed in paragraph (h) of this subdivision.
40 There shall be a rebuttable presumption that a conviction by plea to
41 such an offense was not knowing, voluntary and intelligent, based on
42 ongoing collateral consequences, including potential or actual immi-
43 gration consequences, and there shall be a rebuttable presumption that a
44 conviction by verdict constitutes cruel and unusual punishment under
45 section five of article one of the state constitution based on such
46 consequences; or
47 (k) The judgment occurred prior to the effective date of the laws of
48 two thousand [twenty-one] twenty-three that amended this paragraph and
49 is a conviction for an offense as defined in [subparagraphs] subpara-
50 graph (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of
51 section 160.50 of this part, or a misdemeanor under the former article
52 two hundred twenty-one of the penal law, in which case the court shall
53 presume that a conviction by plea for the aforementioned offenses was
54 not knowing, voluntary and intelligent if it has severe or ongoing
55 consequences, including but not limited to potential or actual immi-
56 gration consequences, and shall presume that a conviction by verdict for
A. 7422--A 4
1 the aforementioned offenses constitutes cruel and unusual punishment
2 under section five of article one of the state constitution, based on
3 those consequences. The people may rebut these presumptions[.]; or
4 (l) Any offense in the state of New York that an intermediate appel-
5 late court, court of appeals, or United States federal court with juris-
6 diction over New York state law issues has deemed in violation of the
7 constitution of this state or of the United States, or any other right
8 under state or federal law.
9 2. Notwithstanding the provisions of subdivision one, the court [must]
10 may deny a motion to vacate a judgment when:
11 (a) The ground or issue raised upon the motion was previously deter-
12 mined on the merits upon an appeal from the judgment, unless since the
13 time of such appellate determination there has been a retroactively
14 effective change in the law controlling such issue. However, if all of
15 the evidence currently before the court was not duly considered previ-
16 ously by the court, the court shall grant the motion or order the hear-
17 ing; or
18 (b) The judgment is, at the time of the motion, appealable or pending
19 on appeal, and sufficient facts appear on the record with respect to the
20 ground or issue raised upon the motion to permit adequate review thereof
21 upon such an appeal unless the issue raised upon such motion is ineffec-
22 tive assistance of counsel. This paragraph shall not apply to a motion
23 under paragraph (i), (j), (k) or (l) of subdivision one of this section;
24 or
25 (c) [Although sufficient facts appear on the record of the proceedings
26 underlying the judgment to have permitted, upon appeal from such judg-
27 ment, adequate review of the ground or issue raised upon the motion, no
28 such appellate review or determination occurred owing to the defendant's
29 unjustifiable failure to take or perfect an appeal during the prescribed
30 period or to his or her unjustifiable failure to raise such ground or
31 issue upon an appeal actually perfected by him or her unless the issue
32 raised upon such motion is ineffective assistance of counsel; or
33 (d)] The ground or issue raised relates solely to the validity of the
34 sentence and not to the validity of the conviction. In such case, the
35 court shall deem the motion to have been made pursuant to section 440.20
36 of this article.
37 [3. Notwithstanding the provisions of subdivision one, the court may
38 deny a motion to vacate a judgment when:
39 (a) Although facts in support of the ground or issue raised upon the
40 motion could with due diligence by the defendant have readily been made
41 to appear on the record in a manner providing adequate basis for review
42 of such ground or issue upon an appeal from the judgment, the defendant
43 unjustifiably failed to adduce such matter prior to sentence and the
44 ground or issue in question was not subsequently determined upon appeal.
45 This paragraph does not apply to a motion based upon deprivation of the
46 right to counsel at the trial or upon failure of the trial court to
47 advise the defendant of such right, or to a motion under paragraph (i)
48 of subdivision one of this section; or
49 (b) The ground or issue raised upon the motion was previously deter-
50 mined on the merits upon a prior motion or proceeding in a court of this
51 state, other than an appeal from the judgment, or upon a motion or
52 proceeding in a federal court; unless since the time of such determi-
53 nation there has been a retroactively effective change in the law
54 controlling such issue; or
A. 7422--A 5
1 (c) Upon a previous motion made pursuant to this section, the defend-
2 ant was in a position adequately to raise the ground or issue underlying
3 the present motion but did not do so.]
4 (d) Although the court may deny the motion under any of the circum-
5 stances specified in this subdivision, in the interest of justice and
6 for good cause shown it may in its discretion grant the motion if it is
7 otherwise meritorious and vacate the judgment.
8 [4.] 3. If the court grants the motion, it must, except as provided in
9 subdivision [five] four or [six] five of this section, vacate the judg-
10 ment, and must either:
11 (a) dismiss and seal the accusatory instrument, or
12 (b) order a new trial, or
13 (c) take such other action as is appropriate in the circumstances.
14 [5.] 4. Upon granting the motion upon the ground, as prescribed in
15 paragraph (g) of subdivision one, that newly discovered evidence creates
16 a probability that had such evidence been received at the trial the
17 verdict would have been more favorable to the [defendant] applicant in
18 that the conviction would have been for a lesser offense than the one
19 contained in the verdict, the court may either:
20 (a) Vacate the judgment and order a new trial; or
21 (b) With the consent of the people, modify the judgment by reducing it
22 to one of conviction for such lesser offense. In such case, the court
23 must re-sentence the [defendant] applicant accordingly.
24 [6.] 5. If the court grants a motion under [paragraph (i) or] para-
25 graph [(k)] (h), (i), (j), (k) or (l) of subdivision one of this
26 section, it must vacate the judgment [and] on the merits, dismiss the
27 accusatory instrument, seal the judgment, and may take such additional
28 action as is appropriate in the circumstances. [In the case of a motion
29 granted under paragraph (i) of subdivision one of this section, the
30 court must vacate the judgment on the merits because the defendant's
31 participation in the offense was a result of having been a victim of
32 trafficking.
33 7.] 6. Upon a new trial resulting from an order vacating a judgment
34 pursuant to this section, the indictment is deemed to contain all the
35 counts and to charge all the offenses which it contained and charged at
36 the time the previous trial was commenced, regardless of whether any
37 count was dismissed by the court in the course of such trial, except (a)
38 those upon or of which the [defendant] applicant was acquitted or deemed
39 to have been acquitted, and (b) those dismissed by the order vacating
40 the judgment, and (c) those previously dismissed by an appellate court
41 upon an appeal from the judgment, or by any court upon a previous post-
42 judgment motion.
43 [8.] 7. Upon an order which vacates a judgment based upon a plea of
44 guilty to an accusatory instrument or a part thereof, but which does not
45 dismiss the entire accusatory instrument, the criminal action is, in the
46 absence of an express direction to the contrary, restored to its
47 [prepleading] pre-pleading status and the accusatory instrument is
48 deemed to contain all the counts and to charge all the offenses which it
49 contained and charged at the time of the entry of the plea, except those
50 subsequently dismissed under circumstances specified in paragraphs (b)
51 and (c) of subdivision six. Where the plea of guilty was entered and
52 accepted, pursuant to subdivision three of section 220.30, upon the
53 condition that it constituted a complete disposition not only of the
54 accusatory instrument underlying the judgment vacated but also of one or
55 more other accusatory instruments against the [defendant] applicant then
56 pending in the same court, the order of vacation completely restores
A. 7422--A 6
1 such other accusatory instruments; and such is the case even though such
2 order dismisses the main accusatory instrument underlying the judgment.
3 [9.] 8. Upon granting of a motion pursuant to paragraph (j) of subdi-
4 vision one of this section, the court may either:
5 (a) With the consent of the people, vacate the judgment or modify the
6 judgment by reducing it to one of conviction for a lesser offense; or
7 (b) Vacate the judgment and order a new trial wherein the [defendant]
8 applicant enters a plea to the same offense in order to permit the court
9 to resentence the [defendant] applicant in accordance with the amendato-
10 ry provisions of subdivision one-a of section 70.15 of the penal law.
11 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as
12 amended by chapter 1 of the laws of 1995, is amended to read as follows:
13 § 440.20 Motion to set aside sentence; by [defendant] applicant.
14 1. At any time after the entry of a judgment, the court in which the
15 judgment was entered may, upon motion of the [defendant] applicant, set
16 aside the sentence upon the ground that it was unauthorized, illegally
17 imposed, exceeded the maximum allowed by law, obtained or imposed in
18 violation of the defendant's constitutional rights, or was otherwise
19 invalid as a matter of law. Where the judgment includes a sentence of
20 death, the court may also set aside the sentence upon any of the grounds
21 set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of
22 section 440.10 as applied to a separate sentencing proceeding under
23 section 400.27, provided, however, that to the extent the ground or
24 grounds asserted include one or more of the aforesaid paragraphs of
25 subdivision one of section 440.10, the court must also apply [subdivi-
26 sions] subdivision two [and three] of section 440.10, other than para-
27 graph [(d)] (c) of [subdivision two of] such [section] subdivision, in
28 determining the motion. In the event the court enters an order granting
29 a motion to set aside a sentence of death under this section, the court
30 must either direct a new sentencing proceeding in accordance with
31 section 400.27 or, to the extent that the defendant cannot be resen-
32 tenced to death consistent with the laws of this state or the constitu-
33 tion of this state or of the United States, resentence the defendant to
34 life imprisonment without parole or to a sentence of imprisonment for
35 the class A-I felony of murder in the first degree other than a sentence
36 of life imprisonment without parole. Upon granting the motion upon any
37 of the grounds set forth in the aforesaid paragraphs of subdivision one
38 of section 440.10 and setting aside the sentence, the court must afford
39 the people a reasonable period of time, which shall not be less than ten
40 days, to determine whether to take an appeal from the order setting
41 aside the sentence of death. The taking of an appeal by the people stays
42 the effectiveness of that portion of the court's order that directs a
43 new sentencing proceeding.
44 2. Notwithstanding the provisions of subdivision one, the court
45 [must] may deny such a motion when the ground or issue raised thereupon
46 was previously determined on the merits upon an appeal from the judgment
47 or sentence, unless since the time of such appellate determination there
48 has been a retroactively effective change in the law controlling such
49 issue. However, if all of the evidence currently before the court was
50 not duly considered previously by the court, the court shall not deny
51 the motion to vacate and instead shall order a hearing or grant the
52 motion. Even if the court has already considered all of the evidence
53 currently before the court, the court in the interest of justice and for
54 good cause shown may grant the motion if it is otherwise meritorious.
55 3. [Notwithstanding the provisions of subdivision one, the court may
56 deny such a motion when the ground or issue raised thereupon was previ-
A. 7422--A 7
1 ously determined on the merits upon a prior motion or proceeding in a
2 court of this state, other than an appeal from the judgment, or upon a
3 prior motion or proceeding in a federal court, unless since the time of
4 such determination there has been a retroactively effective change in
5 the law controlling such issue. Despite such determination, however,
6 the court in the interest of justice and for good cause shown, may in
7 its discretion grant the motion if it is otherwise meritorious.
8 4.] An order setting aside a sentence pursuant to this section does
9 not affect the validity or status of the underlying conviction, and
10 after entering such an order the court must resentence the [defendant]
11 applicant in accordance with the law.
12 § 4. Section 440.30 of the criminal procedure law, subdivisions 1 and
13 1-a as amended by chapter 19 of the laws of 2012 and the opening para-
14 graph of paragraph (b) of subdivision 1 as amended by section 10 of part
15 LLL of chapter 59 of the laws of 2019, is amended to read as follows:
16 § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
17 1. [(a) A] An application for assignment of counsel for a motion to
18 vacate a judgment pursuant to section 440.10 or 440.11 of this article
19 and a motion to set aside a sentence pursuant to section 440.20 of this
20 article must be made in writing by a pro se applicant to the judge or
21 justice who imposed the original sentence and upon reasonable notice to
22 the people. [Upon the motion, a defendant]
23 (a) The court shall assign defense counsel in cases where there is a
24 colorable claim of relief according to this article, in accordance with
25 section seven hundred twenty-two of the county law. For the purpose of
26 this section, a colorable claim is a claim that, taking the facts
27 alleged in the application as true and viewed in a light most favorable
28 to the applicant, would entitle the applicant to relief.
29 (b) If the judge decides not to assign counsel, they shall state the
30 reasons for denying the request for assignment of counsel in writing.
31 (c) If, at the time of such applicant's request for assignment of
32 counsel, the original sentencing judge or justice no longer works in the
33 court in which the original sentence was imposed, then the request shall
34 be randomly assigned to another judge or justice of the court in which
35 the original sentence was imposed.
36 (d) Applicants already represented by counsel, either appointed pursu-
37 ant to section seven hundred twenty-two of the county law or otherwise
38 retained, are not required to file an application for assignment of
39 counsel.
40 2. Upon the request of the applicant or their defense counsel, the
41 court shall order:
42 (a) the people to make available a copy of its file of the case,
43 including any physical evidence in the people's possession and grand
44 jury minutes;
45 (b) the applicant's prior trial and appellate defense counsel to make
46 available their complete files relating to the case;
47 (c) court clerks and probation departments to make available the court
48 files or probation records relating to the case; and
49 (d) any law enforcement agency involved with the case to turn over its
50 files of the case, including police reports, witness statements,
51 evidence vouchers, or any other relevant records or evidence at its
52 disposal.
53 The court shall further ensure that any disclosure of evidence or
54 property ordered pursuant to this subdivision may be subject to a
55 protective order as defined in section 245.70 of this part, where appro-
56 priate.
A. 7422--A 8
1 Nothing in this section shall preclude the court from conducting an in
2 camera inspection of evidence and issuing a protective order pursuant to
3 section 245.70 of this part at the request of the prosecution or
4 defense.
5 3. (a) An applicant who is in a position adequately to raise more than
6 one ground should raise every such ground upon which [he or she intends]
7 they intend to challenge the judgment or sentence. If the motion is
8 based upon the existence or occurrence of facts, the motion papers
9 [must] may contain sworn allegations thereof, whether by the [defendant]
10 applicant or by another person or persons. Such sworn allegations may be
11 based upon personal knowledge of the affiant or upon information and
12 belief, provided that in the latter event the affiant must state the
13 sources of such information and the grounds of such belief. The [defend-
14 ant] applicant may further submit documentary evidence or information
15 supporting or tending to support the allegations of the moving papers.
16 (b) The people may file with the court, and in such case must serve a
17 copy thereof upon the [defendant] applicant or [his or her] their coun-
18 sel, if any, an answer denying or admitting any or all of the allega-
19 tions of the motion papers, and may further submit documentary evidence
20 or information refuting or tending to refute such allegations.
21 (c) After all papers of both parties have been filed, and after all
22 documentary evidence or information, if any, has been submitted, the
23 court must consider the same for the purpose of ascertaining whether the
24 motion is determinable without a hearing to resolve questions of fact.
25 [(b) In conjunction with the filing or consideration of a motion to
26 vacate a judgment pursuant to section 440.10 of this article by a
27 defendant convicted after a trial, in cases where the court has ordered
28 an evidentiary hearing upon such motion, the court may order that the
29 people produce or make available for inspection property in its
30 possession, custody, or control that was secured in connection with the
31 investigation or prosecution of the defendant upon credible allegations
32 by the defendant and a finding by the court that such property, if
33 obtained, would be probative to the determination of defendant's actual
34 innocence, and that the request is reasonable. The court shall deny or
35 limit such a request upon a finding that such a request, if granted,
36 would threaten the integrity or chain of custody of property or the
37 integrity of the processes or functions of a laboratory conducting DNA
38 testing, pose a risk of harm, intimidation, embarrassment, reprisal, or
39 other substantially negative consequences to any person, undermine the
40 proper functions of law enforcement including the confidentiality of
41 informants, or on the basis of any other factor identified by the court
42 in the interests of justice or public safety. The court shall further
43 ensure that any property produced pursuant to this paragraph is subject
44 to a protective order, where appropriate. The court shall deny any
45 request made pursuant to this paragraph where:
46 (i) (1) the defendant's motion pursuant to section 440.10 of this
47 article does not seek to demonstrate his or her actual innocence of the
48 offense or offenses of which he or she was convicted that are the
49 subject of the motion, or (2) the defendant has not presented credible
50 allegations and the court has not found that such property, if obtained,
51 would be probative to the determination of the defendant's actual inno-
52 cence and that the request is reasonable;
53 (ii) the defendant has made his or her motion after five years from
54 the date of the judgment of conviction; provided, however, that this
55 limitation period shall be tolled for five years if the defendant is in
56 custody in connection with the conviction that is the subject of his or
A. 7422--A 9
1 her motion, and provided further that, notwithstanding such limitation
2 periods, the court may consider the motion if the defendant has shown:
3 (A) that he or she has been pursuing his or her rights diligently and
4 that some extraordinary circumstance prevented the timely filing of the
5 motion; (B) that the facts upon which the motion is predicated were
6 unknown to the defendant or his or her attorney and could not have been
7 ascertained by the exercise of due diligence prior to the expiration of
8 the statute of limitations; or (C) considering all circumstances of the
9 case including but not limited to evidence of the defendant's guilt, the
10 impact of granting or denying such motion upon public confidence in the
11 criminal justice system, or upon the safety or welfare of the community,
12 and the defendant's diligence in seeking to obtain the requested proper-
13 ty or related relief, the interests of justice would be served by
14 considering the motion;
15 (iii) the defendant is challenging a judgment convicting him or her of
16 an offense that is not a felony defined in section 10.00 of the penal
17 law; or
18 (iv) upon a finding by the court that the property requested in this
19 motion would be available through other means through reasonable efforts
20 by the defendant to obtain such property.
21 1-a.] 4. (a) [(1)] Where the [defendant's] applicant's motion requests
22 the performance of a forensic DNA test on specified evidence, and upon
23 the court's determination that any evidence containing deoxyribonucleic
24 acid ("DNA") was secured in connection with the trial or the plea
25 resulting in the judgment, the court shall grant the application for
26 forensic DNA testing of such evidence upon its determination that [if a]
27 had the DNA test [had] results been [conducted on such evidence, and if
28 the results had been admitted in the trial resulting in the judgment,]
29 available at the time of trial or plea, there [exists] is a reasonable
30 probability that the verdict would have been more favorable to the
31 [defendant] applicant.
32 [(2) Where the defendant's motion for forensic DNA testing of speci-
33 fied evidence is made following a plea of guilty and entry of judgment
34 thereon convicting him or her of: (A) a homicide offense defined in
35 article one hundred twenty-five of the penal law, any felony sex offense
36 defined in article one hundred thirty of the penal law, a violent felony
37 offense as defined in paragraph (a) of subdivision one of section 70.02
38 of the penal law, or (B) any other felony offense to which he or she
39 pled guilty after being charged in an indictment or information in supe-
40 rior court with one or more of the offenses listed in clause (A) of this
41 subparagraph, then the court shall grant such a motion upon its determi-
42 nation that evidence containing DNA was secured in connection with the
43 investigation or prosecution of the defendant, and if a DNA test had
44 been conducted on such evidence and the results had been known to the
45 parties prior to the entry of the defendant's plea and judgment thereon,
46 there exists a substantial probability that the evidence would have
47 established the defendant's actual innocence of the offense or offenses
48 that are the subject of the defendant's motion; provided, however, that:
49 (i) the court shall consider whether the defendant had the opportunity
50 to request such testing prior to entering a guilty plea, and, where it
51 finds that the defendant had such opportunity and unjustifiably failed
52 to do so, the court may deny such motion; and
53 (ii) a court shall deny the defendant's motion for forensic DNA test-
54 ing where the defendant has made his or her motion more than five years
55 after entry of the judgment of conviction; except that the limitation
56 period may be tolled if the defendant has shown: (A) that he or she has
A. 7422--A 10
1 been pursuing his or her rights diligently and that some extraordinary
2 circumstance prevented the timely filing of the motion for forensic DNA
3 testing; (B) that the facts upon which the motion is predicated were
4 unknown to the defendant or his or her attorney and could not have been
5 ascertained by the exercise of due diligence prior to the expiration of
6 this statute of limitations; or (C) considering all circumstances of the
7 case including but not limited to evidence of the defendant's guilt, the
8 impact of granting or denying such motion upon public confidence in the
9 criminal justice system, or upon the safety or welfare of the community,
10 and the defendant's diligence in seeking to obtain the requested proper-
11 ty or related relief, the interests of justice would be served by toll-
12 ing such limitation period.]
13 (b) Where the applicant's motion for relief requests the performance
14 of any other testing of forensic evidence or any physical evidence
15 secured in the case, the court shall grant the application for testing
16 of such evidence, upon its determination that had the results of testing
17 of forensic or other physical evidence been available at the time of
18 trial or plea, there is a reasonable probability that the verdict would
19 have been more favorable to the applicant.
20 (c) (i) In conjunction with the filing of a motion under this subdivi-
21 sion, the court may direct the people to provide the [defendant] appli-
22 cant and their counsel with information in the possession of the people
23 concerning the current physical location of the specified evidence and
24 if the specified evidence no longer exists or the physical location of
25 the specified evidence is unknown, a representation to that effect and
26 information and documentary evidence in the possession of the people
27 concerning the last known physical location of such specified evidence.
28 (ii) If there is a finding by the court that the specified evidence no
29 longer exists or the physical location of such specified evidence is
30 unknown, [such information in and of itself shall not be a factor from
31 which any inference unfavorable to the people may be drawn by the court
32 in deciding a motion under this section] the court may grant the appli-
33 cant's motion and vacate the judgment upon a finding by the court that
34 such evidence is unavailable due to malfeasance or neglect.
35 (iii) The court, on motion of the [defendant] applicant, may also
36 issue a subpoena duces tecum directing a public or private hospital,
37 laboratory or other entity to produce such specified evidence in its
38 possession and/or information and documentary evidence in its possession
39 concerning the location and status of such specified evidence.
40 [(c)] (d) In response to a motion under this paragraph, upon notice to
41 the parties and to the entity required to perform the search the court
42 may order an entity that has access to the combined DNA index system
43 ("CODIS") or its successor system to compare a DNA profile obtained from
44 probative biological material gathered in connection with the investi-
45 gation or prosecution of the [defendant] applicant against DNA databanks
46 by keyboard searches, or a similar method that does not involve upload-
47 ing, upon a court's determination that (1) such profile complies with
48 federal bureau of investigation or state requirements, whichever are
49 applicable and as such requirements are applied to law enforcement agen-
50 cies seeking such a comparison, and that the data meet state DNA index
51 system and/or national DNA index system criteria as such criteria are
52 applied to law enforcement agencies seeking such a comparison and (2) if
53 such comparison had been conducted, [and if the results had been admit-
54 ted in the trial resulting in the judgment,] a reasonable probability
55 exists that the verdict would have been more favorable to the [defend-
56 ant, or in a case involving a plea of guilty, if the results had been
A. 7422--A 11
1 available to the defendant prior to the plea, a reasonable probability
2 exists that the conviction would not have resulted] applicant. For
3 purposes of this subdivision, a "keyboard search" shall mean a search of
4 a DNA profile against the databank in which the profile that is searched
5 is not uploaded to or maintained in the databank.
6 [2. If it appears by conceded or uncontradicted allegations of the
7 moving papers or of the answer, or by unquestionable documentary proof,
8 that there are circumstances which require denial thereof pursuant to
9 subdivision two of section 440.10 or subdivision two of section 440.20,
10 the court must summarily deny the motion. If it appears that there are
11 circumstances authorizing, though not requiring, denial thereof pursuant
12 to subdivision three of section 440.10 or subdivision three of section
13 440.20, the court may in its discretion either (a) summarily deny the
14 motion, or (b) proceed to consider the merits thereof.
15 3.] 5. Upon considering the merits of the motion, the court must grant
16 it without conducting a hearing and vacate the judgment or set aside the
17 sentence, as the case may be, if:
18 (a) The moving papers allege a ground constituting legal basis for the
19 motion; and
20 (b) Such ground, if based upon the existence or occurrence of facts,
21 is supported by sworn allegations thereof; and
22 (c) The sworn allegations of fact essential to support the motion are
23 either conceded by the people to be true or are conclusively substanti-
24 ated by unquestionable documentary proof.
25 [4.] 6. Upon considering the merits of the motion, the court may deny
26 it without conducting a hearing if:
27 (a) The moving papers do not allege any ground constituting legal
28 basis for the motion; or
29 (b) [The motion is based upon the existence or occurrence of facts and
30 the moving papers do not contain sworn allegations substantiating or
31 tending to substantiate all the essential facts, as required by subdivi-
32 sion one; or
33 (c)] An allegation of fact essential to support the motion is conclu-
34 sively refuted by unquestionable documentary proof; or
35 [(d)] (c) An allegation of fact essential to support the motion (i) is
36 contradicted by a court record or other official document[, or is made
37 solely by the defendant and is unsupported by any other affidavit or
38 evidence,] and (ii) under these and all the other circumstances attend-
39 ing the case, there is no reasonable possibility that such allegation is
40 true.
41 [5.] 7. If the court does not determine the motion pursuant to [subdi-
42 visions two, three or four] subdivision five or six of this section, it
43 must conduct a hearing and make findings of fact essential to the deter-
44 mination thereof. The [defendant] applicant has a right to be present at
45 such hearing but may waive such right in writing. If [he] the applicant
46 does not so waive it and if [he is] they are confined in a prison or
47 other institution of this state, the court must cause [him] them to be
48 produced at such hearing.
49 [6.] 8. At such a hearing, the [defendant] applicant has the burden of
50 proving by a preponderance of the evidence every fact essential to
51 support the motion. At the hearing, either party shall receive a daily
52 copy of the hearing minutes, upon request.
53 [7.] 9. Notwithstanding any other provision of this section, when the
54 applicant raises a colorable claim of relief pursuant to this article,
55 the court shall not summarily deny the motion on the ground that the
56 applicant previously moved for relief under this article.
A. 7422--A 12
1 10. Regardless of whether a hearing was conducted, the court, upon
2 determining the motion, must set forth on the record its findings of
3 fact, its conclusions of law and the reasons for its determination.
4 § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
5 amended by chapter 671 of the laws of 1971 and as renumbered by chapter
6 516 of the laws of 1986, is amended to read as follows:
7 4. An order, entered pursuant to [section 440.40, setting aside a
8 sentence other than one of death, upon motion of the People] article
9 four hundred forty of this title, shall be authorized to an intermediate
10 appellate court as a matter of right.
11 § 6. Subdivision 5 of section 450.10 of the criminal procedure law is
12 REPEALED.
13 § 7. Section 216 of the judiciary law is amended by adding a new
14 subdivision 7 to read as follows:
15 7. The chief administrator of the courts shall collect data and report
16 every year in relation to applications and motions filed pursuant to
17 article four hundred forty of the criminal procedure law, broken down by
18 each section of such article to include motions filed pursuant to
19 sections 440.10, 440.20, 440.40, 440.46, 440.46-a, and 440.47 of the
20 criminal procedure law. Information to be collected and disclosed shall
21 include the raw number of both applications and/or motions filed in each
22 county and on appeal in each judicial department. Information shall
23 include the top conviction charge for each application or motion; when
24 pro se applicants request assignment of counsel pursuant to subdivision
25 two of section 440.30 of the criminal procedure law, whether or not
26 counsel was assigned; the outcome of each motion filed, whether denied
27 without hearing, denied with hearing, vacatur granted, or other; and the
28 average length of time motion under article four hundred forty of the
29 criminal procedure law remains pending for each county. Such report
30 shall aggregate the data collected by county and judicial department.
31 The data shall be aggregated in order to protect the identity of indi-
32 vidual applicants. The report shall be released publicly and published
33 on the websites of the office of court administration and the division
34 of criminal justice services. The first report shall be published twelve
35 months after this subdivision shall have become a law, and shall include
36 data from the first six months following the effective date of this
37 subdivision. Reports for subsequent periods shall be published annually
38 thereafter.
39 § 8. Severability. If any provision of this act, or any application of
40 any provision of this act, is held to be invalid, that shall not affect
41 the validity or effectiveness of any other provision of this act, or of
42 any other application of any provision of this act, which can be given
43 effect without that provision or application; and to that end, the
44 provisions and applications of this act are severable.
45 § 9. This act shall take effect on the sixtieth day after it shall
46 have become a law.
