Add §§440.00 & 440.11, amd §§440.10, 440.20, 440.30, 470.15, 450.10, 450.30, 450.90 & 460.60, rpld §450.15,
§460.10 sub 4, CP L; amd §216, Judy L; amd §722, County 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; repeals certain provisions relating thereto.
STATE OF NEW YORK
________________________________________________________________________
7422--B
2025-2026 Regular Sessions
IN ASSEMBLY
March 25, 2025
___________
Introduced by M. of A. WALKER, KIM, TAYLOR, FORREST, REYES, HEVESI,
MITAYNES, ANDERSON, JACKSON, CLARK, SIMON, GONZALEZ-ROJAS, SEAWRIGHT,
R. CARROLL, GALLAGHER, BURDICK, CRUZ, HUNTER, MEEKS, WEPRIN, KELLES,
ROSENTHAL, OTIS, COOK, DINOWITZ, SEPTIMO, GIBBS, GLICK, DAVILA, HYND-
MAN, 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 committee -- 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 committee
AN ACT to amend the criminal procedure law and the judiciary law, in
relation to motions to vacate judgment; to amend the criminal proce-
dure law, in relation to making conforming changes; to amend the coun-
ty law, in relation to assigning counsel in connection with an appeal;
and to repeal certain provisions of the criminal procedure law relat-
ing 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 convicted
5 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, the court in which it
8 was entered may, upon motion of the applicant, vacate such conviction
9 upon the ground that the applicant was convicted of an offense which has
10 been subsequently decriminalized, unless the legislature has expressly
11 provided that:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00248-05-6
A. 7422--B 2
1 (a) decriminalization shall apply prospectively only and shall not
2 apply to offenses committed before the effective date of such law; or
3 (b) the offense for which the applicant was convicted was subsequently
4 reduced to a lesser degree offense by the legislature and such reduction
5 has been made retroactive by the legislature or by controlling judicial
6 authority; or
7 (c) the undisputed act or acts for which the applicant was convicted
8 have been subsequently determined by controlling judicial authority to
9 have been legally insufficient, as of the date of the commission of the
10 crime, to have satisfied the elements of the crime for which the appli-
11 cant was convicted, but were legally sufficient to support conviction
12 for a lesser degree offense on the date of such commission.
13 2. Upon granting relief pursuant to paragraph (a) of subdivision one
14 of this section, the court shall vacate the judgment of conviction on
15 the merits, dismiss the accusatory instrument and may take such addi-
16 tional action as is appropriate in the circumstances. Upon granting
17 relief pursuant to paragraph (b) or (c) of subdivision one of this
18 section, the court shall modify the judgment to one of conviction for
19 the appropriate lesser offense and re-sentence the applicant according-
20 ly.
21 § 2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
22 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph (h)
23 of subdivision 1, paragraph (a) of subdivision 3 and subdivision 4 as
24 amended and subdivisions 7 and 8 as renumbered by chapter 332 of the
25 laws of 2010, paragraph (i) of subdivision 1 and subdivision 6 as
26 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
27 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
28 vision 1 as amended by chapter 92 of the laws of 2021, paragraphs (b)
29 and (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
30 and subdivision 9 as added by section 4 of part OO of chapter 55 of the
31 laws of 2019, is amended to read as follows:
32 § 440.10 Motion to vacate judgment.
33 1. At any time after the entry of a judgment, the court in which it
34 was entered may, upon motion of the [defendant] applicant, vacate such
35 judgment upon the ground that:
36 (a) The court did not have jurisdiction of the action or of the person
37 of the [defendant] applicant; or
38 (b) The judgment was procured by duress, misrepresentation or fraud on
39 the part of the court or a prosecutor or a person acting for or in
40 behalf of a court or a prosecutor; or
41 (c) Material evidence adduced at a trial resulting in the judgment of
42 conviction was false and was, prior to the entry of the judgment, known
43 by the prosecutor or by the court to be false; or
44 (d) Material evidence adduced by the people at a trial resulting in
45 the judgment was procured in violation of the [defendant's] applicant's
46 rights under the constitution of this state or of the United States; or
47 (e) During the proceedings resulting in the judgment, the [defendant]
48 applicant, by reason of mental disease or defect, was incapable of
49 understanding or participating in such proceedings; or
50 (f) Improper and prejudicial conduct not appearing in the record
51 occurred during a trial resulting in the judgment which conduct, if it
52 had appeared in the record, would have [required] made possible a
53 reversal of the judgment upon an appeal therefrom; or
54 (g) (i) New evidence has been discovered since the entry of a judgment
55 based upon a verdict of guilty after trial, which could not have been
56 produced by the [defendant] applicant at the trial even with due dili-
A. 7422--B 3
1 gence on [his] the applicant's part and which is of such character as to
2 create a reasonable probability that had such evidence been received at
3 the trial, the verdict would have been more favorable to the [defendant]
4 applicant; [provided that a motion based upon such ground must be made
5 with due diligence after the discovery of such alleged new evidence]; or
6 (ii) New evidence has been discovered since the entry of a judgment
7 based upon a guilty plea, which could not have been produced by the
8 applicant prior to the entry of the guilty plea even with due diligence
9 on the applicant's part and which is of such a character as to create a
10 reasonable probability that the applicant was actually innocent of the
11 offense and the underlying conduct for which they were convicted.
12 [(g-1) Forensic DNA] (iii) In cases involving the forensic testing of
13 evidence performed since the entry of a judgment, [(1) in the case of a
14 defendant convicted after a guilty plea, the court has determined that
15 the defendant has demonstrated a substantial probability that the
16 defendant was actually innocent of the offense of which he or she was
17 convicted, or (2) in the case of a defendant convicted after a trial,]
18 the court has determined that there exists a reasonable probability
19 that:
20 (A) in the case of an applicant convicted after a guilty plea, that
21 the defendant is actually innocent; or
22 (B) in the case of an applicant convicted after trial, that the
23 verdict would have been more favorable to the [defendant] applicant.
24 (h) The judgment was obtained in violation of a right of the [defend-
25 ant] applicant, under the constitution of this state or of the United
26 States, including, but not limited to, a judgment entered, whether upon
27 trial or guilty plea, against an applicant who is actually innocent; or
28 (i) The judgment is a conviction where the [defendant's] applicant's
29 participation in the offense was a result of having been a victim of sex
30 trafficking under section 230.34 of the penal law, sex trafficking of a
31 child under section 230.34-a of the penal law, labor trafficking under
32 section 135.35 of the penal law, aggravated labor trafficking under
33 section 135.37 of the penal law, compelling prostitution under section
34 230.33 of the penal law, or trafficking in persons under the Trafficking
35 Victims Protection Act (United States Code, title 22, chapter 78);
36 provided that:
37 (i) official documentation of the [defendant's] applicant's status as
38 a victim of sex trafficking, labor trafficking, aggravated labor traf-
39 ficking, compelling prostitution, or trafficking in persons at the time
40 of the offense from a federal, state or local government agency shall
41 create a presumption that the [defendant's] applicant's participation in
42 the offense was a result of having been a victim of sex trafficking,
43 labor trafficking, aggravated labor trafficking, compelling prostitution
44 or trafficking in persons, but shall not be required for granting a
45 motion under this paragraph;
46 (ii) a motion under this paragraph, and all pertinent papers and docu-
47 ments, shall be confidential and may not be made available to any person
48 or public or private [entity] agency except [where] when specifically
49 authorized by the court; and
50 (iii) when a motion is filed under this paragraph, the court may, upon
51 the consent of the petitioner and all of the involved state [and] or
52 local prosecutorial agencies [that prosecuted each matter], consolidate
53 into one proceeding a motion to vacate judgments imposed by distinct or
54 multiple criminal courts; or
55 (j) The judgment is a conviction for [a class A or unclassified] any
56 misdemeanor entered prior to the effective date of this paragraph and
A. 7422--B 4
1 satisfies the ground prescribed in paragraph (h) of this subdivision.
2 There shall be a rebuttable presumption that a conviction by plea to
3 such an offense was not knowing, voluntary and intelligent, based on
4 ongoing collateral consequences, including potential or actual immi-
5 gration consequences, and there shall be a rebuttable presumption that a
6 conviction by verdict constitutes cruel and unusual punishment under
7 section five of article one of the state constitution based on such
8 consequences; or
9 (k) The judgment occurred prior to the effective date of chapter nine-
10 ty-two of the laws of two thousand twenty-one [that amended this para-
11 graph] and is a conviction for an offense as defined in [subparagraphs]
12 subparagraph (i), (ii), (iii) or (iv) of paragraph (k) of subdivision
13 three of section 160.50 of this part, or a misdemeanor under the former
14 article two hundred twenty-one of the penal law, in which case the court
15 shall presume that a conviction by plea for the aforementioned offenses
16 was not knowing, voluntary and intelligent if it has severe or ongoing
17 consequences, including but not limited to potential or actual immi-
18 gration consequences, and shall presume that a conviction by verdict for
19 the aforementioned offenses constitutes cruel and unusual punishment
20 under section five of article one of the state constitution, based on
21 those consequences. The people may rebut these presumptions[.]; or
22 (l) The offense for which the applicant was convicted has been held to
23 be unconstitutional under the federal or state constitutions by the
24 court of appeals, an intermediate appellate court or a U.S. court with
25 jurisdiction over New York.
26 2. The court must grant a hearing where:
27 (a) the moving papers allege a ground constituting a legal basis for
28 motion;
29 (b) the motion papers are based upon the existence or occurrence of
30 facts and contain sworn allegations substantiating or tending to
31 substantiate all the essential facts, as required by subdivision one of
32 this section;
33 (c) no allegation of fact essential to support the motion is conclu-
34 sively refuted by unquestionable documentary proof; and
35 (d) allegations of fact essential to support the motion are not
36 contradicted by a court record or other official document, thereby
37 establishing the reasonable possibility that such allegations are true.
38 3. Notwithstanding the provisions of subdivision one of this section,
39 the court [must] shall deny a motion to vacate a judgment when:
40 (a) The ground or issue raised upon the motion was previously deter-
41 mined on the merits upon an appeal from the judgment, unless since the
42 time of such appellate determination there has been a retroactively
43 effective change in the law controlling such issue; or the applicant has
44 submitted new evidence that could not have been previously produced with
45 the exercise of due diligence that materially advances the claim; or
46 (b) The judgment is, at the time of the motion, appealable or pending
47 on appeal, and sufficient facts appear on the record with respect to the
48 ground or issue raised upon the motion to permit adequate review thereof
49 upon such an appeal unless the issue raised upon such motion is ineffec-
50 tive assistance of counsel. This paragraph shall not apply to a motion
51 under paragraph (h), (i), (j), or (k) of subdivision one of this
52 section; or
53 (c) Although sufficient facts appear on the record of the proceedings
54 underlying the judgment to have permitted, upon appeal from such judg-
55 ment, adequate review of the ground or issue raised upon the motion, no
56 such appellate review or determination occurred owing to the [defend-
A. 7422--B 5
1 ant's] applicant's unjustifiable failure to take or perfect an appeal
2 during the prescribed period or to [his or her] the applicant's unjusti-
3 fiable failure to raise such ground or issue upon an appeal actually
4 perfected by [him or her] them unless the issue raised upon such motion
5 is ineffective assistance of counsel; or
6 (d) The ground or issue raised relates solely to the validity of the
7 sentence and not to the validity of the conviction. In such case, the
8 court shall deem the motion to have been made pursuant to section 440.20
9 of this article.
10 [3.] 4. Notwithstanding the provisions of subdivision one of this
11 section, the court may deny a motion to vacate a judgment when:
12 (a) Although facts in support of the ground or issue raised upon the
13 motion could with due diligence by the [defendant] applicant have readi-
14 ly been made to appear on the record in a manner providing adequate
15 basis for review of such ground or issue upon an appeal from the judg-
16 ment, the [defendant] applicant unjustifiably failed to adduce such
17 matter prior to sentence and the ground or issue in question was not
18 subsequently determined upon appeal. This paragraph does not apply to a
19 motion based upon deprivation of the right to counsel at the trial or
20 upon failure of the trial court to advise the [defendant] applicant of
21 such right, or to a motion under paragraph (i) of subdivision one of
22 this section; or
23 (b) The ground or issue raised upon the motion was previously deter-
24 mined on the merits upon a prior motion or proceeding in a court of this
25 state, other than an appeal from the judgment, or upon a motion or
26 proceeding in a federal court; unless since the time of such determi-
27 nation there has been a retroactively effective change in the law
28 controlling such issue or the applicant has submitted new evidence that
29 could not have been previously produced with the exercise of due dili-
30 gence that materially advances the claim; or
31 (c) Upon a previous motion made pursuant to this section, the [defend-
32 ant] applicant was in a position adequately to raise the ground or issue
33 underlying the present motion but did not do so.
34 Although the court may deny the motion under any of the circumstances
35 specified in this subdivision, in the interest of justice and for good
36 cause shown it may in its discretion grant the motion if it is otherwise
37 meritorious and vacate the judgment.
38 (d) When making a determination under paragraphs (b) and (c) of this
39 subdivision, the court must consider whether the applicant was unrepre-
40 sented by counsel on the previous motion, was incarcerated at the time
41 it was filed, and any other fact or circumstance that may have limited
42 or impeded the applicant's ability to adequately raise or argue such
43 ground or issue.
44 [4.] 5. For purposes of paragraphs (g) and (h) of subdivision one of
45 this section, an applicant is innocent, where they prove that they did
46 not commit the crime for which they were convicted or that the crime of
47 conviction did not occur. If the court concludes that there is a reason-
48 able probability that the applicant is actually innocent, the court
49 shall vacate the conviction or convictions and order a new trial. If the
50 court concludes by clear and convincing evidence that the applicant is
51 actually innocent of the crime, the court shall vacate the conviction or
52 convictions and dismiss with prejudice.
53 6. If the court grants the motion, it must, except as provided in
54 subdivision [five or six] seven or eight of this section, vacate the
55 judgment, and must either:
56 (a) dismiss and seal the accusatory instrument, or
A. 7422--B 6
1 (b) order a new trial, or
2 (c) take such other action as is appropriate in the circumstances.
3 [5.] 7. Upon granting the motion upon the ground, as prescribed in
4 paragraph (g) of subdivision one of this section, that newly discovered
5 evidence creates a probability that had such evidence been received at
6 the trial the verdict would have been more favorable to the [defendant]
7 applicant in that the conviction would have been for a lesser offense
8 than the one contained in the verdict, the court may either:
9 (a) Vacate the judgment and order a new trial; or
10 (b) With the consent of the people, modify the judgment by reducing it
11 to one of conviction for such lesser offense. In such case, the court
12 must re-sentence the [defendant] applicant accordingly.
13 [6.] 8. If the court grants a motion under paragraph [(i) or paragraph
14 (k)] (g) or (h) when the basis for relief is actual innocence as estab-
15 lished by clear and convincing evidence, or under paragraph (i), (j), or
16 (k) of subdivision one of this section, it must vacate the judgment
17 [and] on the merits, dismiss the accusatory instrument, seal the judg-
18 ment, and may take such additional action as is appropriate in the
19 circumstances. In the case of a motion granted under paragraph (i) of
20 subdivision one of this section, the court must vacate the judgment on
21 the merits because the [defendant's] applicant's participation in the
22 offense was a result of having been a victim of trafficking.
23 [7.] 9. Upon a new trial resulting from an order vacating a judgment
24 pursuant to this section, the indictment is deemed to contain all the
25 counts and to charge all the offenses which it contained and charged at
26 the time the previous trial was commenced, regardless of whether any
27 count was dismissed by the court in the course of such trial, except (a)
28 those upon or of which the [defendant] applicant was acquitted or deemed
29 to have been acquitted, and (b) those dismissed by the order vacating
30 the judgment, and (c) those previously dismissed by an appellate court
31 upon an appeal from the judgment, or by any court upon a previous post-
32 judgment motion.
33 [8.] 10. Upon an order which vacates a judgment based upon a plea of
34 guilty to an accusatory instrument or a part thereof, but which does not
35 dismiss the entire accusatory instrument, the criminal action is, in the
36 absence of an express direction to the contrary, restored to its
37 [prepleading] pre-pleading status and the accusatory instrument is
38 deemed to contain all the counts and to charge all the offenses which it
39 contained and charged at the time of the entry of the plea, except those
40 subsequently dismissed under circumstances specified in paragraphs (b)
41 and (c) of subdivision [six] eight of this section. Where the plea of
42 guilty was entered and accepted, pursuant to subdivision three of
43 section 220.30, upon the condition that it constituted a complete dispo-
44 sition not only of the accusatory instrument underlying the judgment
45 vacated but also of one or more other accusatory instruments against the
46 [defendant] applicant then pending in the same court, the order of vaca-
47 tion completely restores such other accusatory instruments; and such is
48 the case even though such order dismisses the main accusatory instrument
49 underlying the judgment.
50 [9.] 11. Upon granting of a motion pursuant to paragraph (j) of subdi-
51 vision one of this section, the court may either:
52 (a) With the consent of the people, vacate the judgment or modify the
53 judgment by reducing it to one of conviction for a lesser offense; or
54 (b) Vacate the judgment and order a new trial wherein the [defendant]
55 applicant enters a plea to the same offense in order to permit the court
A. 7422--B 7
1 to resentence the [defendant] applicant in accordance with the amendato-
2 ry provisions of subdivision one-a of section 70.15 of the penal law.
3 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as
4 amended by chapter 1 of the laws of 1995, is amended to read as follows:
5 § 440.20 Motion to set aside sentence; by [defendant] applicant.
6 1. At any time after the entry of a judgment, the court in which the
7 judgment was entered may, upon motion of the [defendant] applicant, set
8 aside the sentence upon the ground that it was unauthorized, illegally
9 imposed, or otherwise invalid as a matter of law. Where the judgment
10 includes a sentence of death, the court may also set aside the sentence
11 upon any of the grounds set forth in paragraph (b), (c), (f), (g) or (h)
12 of subdivision one of section 440.10 of this article as applied to a
13 separate sentencing proceeding under section 400.27 of this part,
14 provided, however, that to the extent the ground or grounds asserted
15 include one or more of the aforesaid paragraphs of subdivision one of
16 section 440.10 of this article, the court must also apply [subdivisions
17 two and] subdivision three of such section [440.10, other than paragraph
18 (d) of subdivision two of such section,] in determining the motion. In
19 the event the court enters an order granting a motion to set aside a
20 sentence of death under this section, the court must either direct a new
21 sentencing proceeding in accordance with section 400.27 of this part or,
22 to the extent that the [defendant] applicant cannot be resentenced to
23 death consistent with the laws of this state or the constitution of this
24 state or of the United States, resentence the [defendant] applicant to
25 life imprisonment without parole [or to a sentence of imprisonment for
26 the class A-I felony of murder in the first degree other than a sentence
27 of life imprisonment without parole]. Upon granting the motion upon any
28 of the grounds set forth in the aforesaid paragraphs of subdivision one
29 of section 440.10 of this article and setting aside the sentence, the
30 court must afford the people a reasonable period of time, which shall
31 not be less than ten days, to determine whether to take an appeal from
32 the order setting aside the sentence of death. The taking of an appeal
33 by the people stays the effectiveness of that portion of the court's
34 order that directs a new sentencing proceeding.
35 2. Notwithstanding the provisions of subdivision one of this section,
36 the court [must] may deny such a motion when the ground or issue raised
37 thereupon was previously determined on the merits upon an appeal from
38 the judgment or sentence, unless since the time of such appellate deter-
39 mination there has been a retroactively effective change in the law
40 controlling such issue.
41 3. Notwithstanding the provisions of subdivision one of this section,
42 the court may deny such a motion when the ground or issue raised there-
43 upon was previously determined on the merits upon a prior motion or
44 proceeding in a court of this state, other than an appeal from the judg-
45 ment, or upon a prior motion or proceeding in a federal court, unless
46 since the time of such determination there has been a retroactively
47 effective change in the law controlling such issue. Despite such deter-
48 mination, however, the court in the interest of justice and for good
49 cause shown, may in its discretion grant the motion if it is otherwise
50 meritorious.
51 4. An order setting aside a sentence pursuant to this section does
52 not affect the validity or status of the underlying conviction, and
53 after entering such an order the court must resentence the [defendant]
54 applicant in accordance with the law.
55 § 4. Section 440.30 of the criminal procedure law, subdivisions 1 and
56 1-a as amended by chapter 19 of the laws of 2012 and the opening para-
A. 7422--B 8
1 graph of paragraph (b) of subdivision 1 as amended by section 10 of part
2 LLL of chapter 59 of the laws of 2019, is amended to read as follows:
3 § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
4 1. (a) [A] An application for assignment of counsel for a motion to
5 vacate a judgment pursuant to section 440.10 or 440.11 of this article
6 and a motion to set aside a sentence pursuant to section 440.20 of this
7 article must be made in writing by a pro se applicant, and upon reason-
8 able notice to the people[. Upon the motion, a defendant] and to the
9 court in which the judgment and sentence were entered. The applicant
10 shall provide the court with a plain statement of the legal claim or
11 claims the applicant intends to raise.
12 (b) If, after reviewing the applicant's legal claim, the court finds
13 that there is a reasonable possibility that the applicant is entitled to
14 relief under this article, it shall assign an attorney to further pursue
15 the claim.
16 (c) If the court declines to assign counsel, it shall state the
17 reasons for denying the request in writing.
18 (d) If, at the time of such applicant's request for assignment of
19 counsel, the sentencing judge or justice no longer sits in the court in
20 which the sentence was imposed, the request shall be randomly assigned
21 to another judge or justice of the court.
22 (e) Nothing in this subdivision shall be construed to limit the right
23 of an applicant to the assignment of counsel when a court has ordered a
24 hearing on a motion pursuant to this article.
25 2. (a) In connection with the preparation before filing or proceeding
26 after filing of a motion pursuant to section 440.10 of this article, and
27 upon a showing that the prospective applicant or applicant has sought
28 the requested material from former trial counsel and, where applicable,
29 former appellate counsel without success, the court must order the
30 people to produce discovery material that is potentially relevant to the
31 investigation or presentation of an identifiable claim under this arti-
32 cle. A motion for discovery under this paragraph must be brought upon
33 notice to the people and may be made in anticipation of the filing of a
34 motion to vacate a felony judgment of conviction or after such motion
35 has been filed. The court shall deny a request made pursuant to this
36 paragraph where the applicant intends to or has challenged a judgment of
37 conviction that is not a felony defined in section 10.00 of the penal
38 law, or the requested material is otherwise contained in accessible
39 court files.
40 (b) There shall be a presumption in favor of disclosure when consider-
41 ing and deciding applications for discovery under paragraph (a) of this
42 subdivision.
43 (c) The court may order that disclosure of evidence or property be
44 subject to a protective order as subject to the grounds specified in
45 section 245.70 of this part, where appropriate.
46 (d) Nothing in this section shall be construed to limit the power to
47 subpoena evidence pursuant to section 610.20 of this chapter.
48 3. (a) An applicant who is in a position adequately to raise more than
49 one ground should raise every such ground upon which [he or she intends]
50 they intend to challenge the judgment or sentence. If the motion is
51 based upon the existence or occurrence of facts, the motion papers
52 [must] may contain sworn allegations thereof, whether by the [defendant]
53 applicant or by another person or persons. Such sworn allegations may be
54 based upon personal knowledge of the affiant or upon information and
55 belief, provided that in the latter event the affiant must state the
56 sources of such information and the grounds of such belief. The [defend-
A. 7422--B 9
1 ant] applicant may further submit documentary evidence or information
2 supporting or tending to support the allegations of the moving papers.
3 (b) The people may file with the court, and in such case must serve a
4 copy thereof upon the [defendant] applicant or [his or her] their coun-
5 sel, if any, an answer denying or admitting any or all of the allega-
6 tions of the motion papers, and may further submit documentary evidence
7 or information refuting or tending to refute such allegations.
8 (c) After all papers of both parties have been filed, and after all
9 documentary evidence or information, if any, has been submitted, the
10 court must consider the same for the purpose of ascertaining whether the
11 motion is determinable without a hearing to resolve questions of fact.
12 [(b) In conjunction with the filing or consideration of a motion to
13 vacate a judgment pursuant to section 440.10 of this article by a
14 defendant convicted after a trial, in cases where the court has ordered
15 an evidentiary hearing upon such motion, the court may order that the
16 people produce or make available for inspection property in its
17 possession, custody, or control that was secured in connection with the
18 investigation or prosecution of the defendant upon credible allegations
19 by the defendant and a finding by the court that such property, if
20 obtained, would be probative to the determination of defendant's actual
21 innocence, and that the request is reasonable. The court shall deny or
22 limit such a request upon a finding that such a request, if granted,
23 would threaten the integrity or chain of custody of property or the
24 integrity of the processes or functions of a laboratory conducting DNA
25 testing, pose a risk of harm, intimidation, embarrassment, reprisal, or
26 other substantially negative consequences to any person, undermine the
27 proper functions of law enforcement including the confidentiality of
28 informants, or on the basis of any other factor identified by the court
29 in the interests of justice or public safety. The court shall further
30 ensure that any property produced pursuant to this paragraph is subject
31 to a protective order, where appropriate. The court shall deny any
32 request made pursuant to this paragraph where:
33 (i) (1) the defendant's motion pursuant to section 440.10 of this
34 article does not seek to demonstrate his or her actual innocence of the
35 offense or offenses of which he or she was convicted that are the
36 subject of the motion, or (2) the defendant has not presented credible
37 allegations and the court has not found that such property, if obtained,
38 would be probative to the determination of the defendant's actual inno-
39 cence and that the request is reasonable;
40 (ii) the defendant has made his or her motion after five years from
41 the date of the judgment of conviction; provided, however, that this
42 limitation period shall be tolled for five years if the defendant is in
43 custody in connection with the conviction that is the subject of his or
44 her motion, and provided further that, notwithstanding such limitation
45 periods, the court may consider the motion if the defendant has shown:
46 (A) that he or she has been pursuing his or her rights diligently and
47 that some extraordinary circumstance prevented the timely filing of the
48 motion; (B) that the facts upon which the motion is predicated were
49 unknown to the defendant or his or her attorney and could not have been
50 ascertained by the exercise of due diligence prior to the expiration of
51 the statute of limitations; or (C) considering all circumstances of the
52 case including but not limited to evidence of the defendant's guilt, the
53 impact of granting or denying such motion upon public confidence in the
54 criminal justice system, or upon the safety or welfare of the community,
55 and the defendant's diligence in seeking to obtain the requested proper-
A. 7422--B 10
1 ty or related relief, the interests of justice would be served by
2 considering the motion;
3 (iii) the defendant is challenging a judgment convicting him or her of
4 an offense that is not a felony defined in section 10.00 of the penal
5 law; or
6 (iv) upon a finding by the court that the property requested in this
7 motion would be available through other means through reasonable efforts
8 by the defendant to obtain such property.
9 1-a.] 4. (a) [(1)] Where the [defendant's] applicant's motion requests
10 the performance of a forensic DNA test on specified evidence, and upon
11 the court's determination that any evidence containing deoxyribonucleic
12 acid ("DNA") was secured in connection with the trial or the plea
13 resulting in the judgment, the court shall grant the application for
14 forensic DNA testing of such evidence upon its determination that [if a]
15 had the DNA test [had been conducted on such evidence, and if the]
16 results [had] been available at the time of the trial or plea and had
17 been admitted in the trial resulting in the judgment, there [exists] is
18 a reasonable probability that the verdict would have been more favorable
19 to the [defendant] applicant.
20 [(2) Where the defendant's motion for forensic DNA testing of speci-
21 fied evidence is made following a plea of guilty and entry of judgment
22 thereon convicting him or her of: (A) a homicide offense defined in
23 article one hundred twenty-five of the penal law, any felony sex offense
24 defined in article one hundred thirty of the penal law, a violent felony
25 offense as defined in paragraph (a) of subdivision one of section 70.02
26 of the penal law, or (B) any other felony offense to which he or she
27 pled guilty after being charged in an indictment or information in supe-
28 rior court with one or more of the offenses listed in clause (A) of this
29 subparagraph, then the court shall grant such a motion upon its determi-
30 nation that evidence containing DNA was secured in connection with the
31 investigation or prosecution of the defendant, and if a DNA test had
32 been conducted on such evidence and the results had been known to the
33 parties prior to the entry of the defendant's plea and judgment thereon,
34 there exists a substantial probability that the evidence would have
35 established the defendant's actual innocence of the offense or offenses
36 that are the subject of the defendant's motion; provided, however, that:
37 (i) the court shall consider whether the defendant had the opportunity
38 to request such testing prior to entering a guilty plea, and, where it
39 finds that the defendant had such opportunity and unjustifiably failed
40 to do so, the court may deny such motion; and
41 (ii) a court shall deny the defendant's motion for forensic DNA test-
42 ing where the defendant has made his or her motion more than five years
43 after entry of the judgment of conviction; except that the limitation
44 period may be tolled if the defendant has shown: (A) that he or she has
45 been pursuing his or her rights diligently and that some extraordinary
46 circumstance prevented the timely filing of the motion for forensic DNA
47 testing; (B) that the facts upon which the motion is predicated were
48 unknown to the defendant or his or her attorney and could not have been
49 ascertained by the exercise of due diligence prior to the expiration of
50 this statute of limitations; or (C) considering all circumstances of the
51 case including but not limited to evidence of the defendant's guilt, the
52 impact of granting or denying such motion upon public confidence in the
53 criminal justice system, or upon the safety or welfare of the community,
54 and the defendant's diligence in seeking to obtain the requested proper-
55 ty or related relief, the interests of justice would be served by toll-
56 ing such limitation period.]
A. 7422--B 11
1 (b)(i) In conjunction with the filing of a motion under this subdivi-
2 sion, the court may direct the people to provide the [defendant] appli-
3 cant and the applicant's counsel with information in the possession of
4 the people concerning the current physical location of the specified
5 evidence and if the specified evidence no longer exists or the physical
6 location of the specified evidence is unknown, a representation to that
7 effect and information and documentary evidence in the possession of the
8 people concerning the last known physical location of such specified
9 evidence.
10 (ii) If there is a finding by the court that the specified evidence no
11 longer exists or the physical location of such specified evidence is
12 unknown, [such information in and of itself shall not be a factor from
13 which any inference unfavorable to the people may be drawn by the court
14 in deciding a motion under this section] the court may impose an appro-
15 priate remedy.
16 (iii) The court, on motion of the [defendant] applicant, may also
17 issue a subpoena duces tecum directing a public or private hospital,
18 laboratory or other entity to produce such specified evidence in its
19 possession and/or information and documentary evidence in its possession
20 concerning the location and status of such specified evidence.
21 (c) In response to a motion under this paragraph, upon notice to the
22 parties and to the entity required to perform the search the court may
23 order an entity that has access to the combined DNA index system
24 ("CODIS") or its successor system to compare a DNA profile obtained from
25 probative biological material gathered in connection with the investi-
26 gation or prosecution of the [defendant] applicant against DNA databanks
27 by keyboard searches, or a similar method that does not involve upload-
28 ing, upon a court's determination that (1) such profile complies with
29 federal bureau of investigation or state requirements, whichever are
30 applicable and as such requirements are applied to law enforcement agen-
31 cies seeking such a comparison, and that the data meet state DNA index
32 system and/or national DNA index system criteria as such criteria are
33 applied to law enforcement agencies seeking such a comparison and (2) if
34 such comparison had been conducted, [and if the results had been admit-
35 ted in the trial resulting in the judgment,] a reasonable probability
36 exists that the verdict would have been more favorable to the [defend-
37 ant, or in a case involving a plea of guilty, if the results had been
38 available to the defendant prior to the plea, a reasonable probability
39 exists that the conviction would not have resulted] applicant. For
40 purposes of this subdivision, a "keyboard search" shall mean a search of
41 a DNA profile against the databank in which the profile that is searched
42 is not uploaded to or maintained in the databank.
43 [2. If it appears by conceded or uncontradicted allegations of the
44 moving papers or of the answer, or by unquestionable documentary proof,
45 that there are circumstances which require denial thereof pursuant to
46 subdivision two of section 440.10 or subdivision two of section 440.20,
47 the court must summarily deny the motion. If it appears that there are
48 circumstances authorizing, though not requiring, denial thereof pursuant
49 to subdivision three of section 440.10 or subdivision three of section
50 440.20, the court may in its discretion either (a) summarily deny the
51 motion, or (b) proceed to consider the merits thereof.
52 3.] 5. Where the applicant's motion for relief requests the perform-
53 ance of any other forensic testing of evidence secured in the case, the
54 court shall grant the application for testing of such evidence, upon its
55 determination that had the results of forensic testing of evidence been
56 available at the time of trial or plea and been favorable to the appli-
A. 7422--B 12
1 cant, there is a reasonable probability that the outcome would have been
2 more favorable to the applicant.
3 6. Upon considering the merits of the motion, the court must grant it
4 without conducting a hearing and vacate the judgment or set aside the
5 sentence, as the case may be, if:
6 (a) The moving papers allege a ground constituting legal basis for the
7 motion; and
8 (b) Such ground, if based upon the existence or occurrence of facts,
9 is supported by sworn allegations thereof; and
10 (c) The sworn allegations of fact essential to support the motion are
11 either conceded by the people to be true or are conclusively substanti-
12 ated by unquestionable documentary proof.
13 [4. Upon considering the merits of the motion, the court may deny it
14 without conducting a hearing if:
15 (a) The moving papers do not allege any ground constituting legal
16 basis for the motion; or
17 (b) The motion is based upon the existence or occurrence of facts and
18 the moving papers do not contain sworn allegations substantiating or
19 tending to substantiate all the essential facts, as required by subdivi-
20 sion one; or
21 (c) An allegation of fact essential to support the motion is conclu-
22 sively refuted by unquestionable documentary proof; or
23 (d) An allegation of fact essential to support the motion (i) is
24 contradicted by a court record or other official document, or is made
25 solely by the defendant and is unsupported by any other affidavit or
26 evidence, and (ii) under these and all the other circumstances attending
27 the case, there is no reasonable possibility that such allegation is
28 true.
29 5.] 7. If it appears by conceded or uncontradicted allegations of the
30 moving papers or of the answer, or by unquestionable documentary proof,
31 that there are circumstances which require denial thereof pursuant to
32 subdivision two of section 440.10 of this article or subdivision two of
33 section 440.20 of this article, the court must summarily deny the
34 motion. If it appears that there are circumstances authorizing, though
35 not requiring, denial thereof pursuant to subdivision three of section
36 440.10 of this article or subdivision three of section 440.20 of this
37 article, the court may in its discretion either (a) summarily deny the
38 motion, or (b) proceed to consider the merits thereof.
39 8. The court must grant a hearing where:
40 (a) the moving papers allege a ground constituting a legal basis for
41 motion; and
42 (b) the motion papers are based upon the existence or occurrence of
43 facts and contain sworn allegations substantiating or tending to
44 substantiate all the essential facts, as required by subdivision one of
45 this section; and
46 (c) no allegation of fact essential to support the motion is conclu-
47 sively refuted by unquestionable documentary proof; and
48 (d) allegations of fact essential to support the motion are not
49 contradicted by a court record or other official document, thereby
50 establishing the reasonable possibility that such allegations are true.
51 9. If the court does not determine the motion pursuant to [subdivi-
52 sions two, three or four] subdivision six or seven of this section, it
53 must conduct a hearing and make findings of fact essential to the deter-
54 mination thereof. The [defendant] applicant has a right to be present at
55 such hearing but may waive such right in writing. If [he] the applicant
56 does not so waive [it] such right and if [he is] they are confined in a
A. 7422--B 13
1 prison or other institution of this state, the court must cause [him]
2 them to be produced at such hearing.
3 [6.] 10. At such a hearing, the [defendant] applicant has the burden
4 of proving by a preponderance of the evidence every fact essential to
5 support the motion.
6 [7.] 11. Regardless of whether a hearing was conducted, the court,
7 upon determining the motion, must set forth on the record its findings
8 of fact, its conclusions of law and the reasons for its determination.
9 § 5. Section 470.15 of the criminal procedure law is amended by adding
10 a new subdivision 2-a to read as follows:
11 2-a. In an appeal pursuant to subdivision three or four of section
12 450.10 of this title from an order entered pursuant to section 440.10,
13 440.11 or 440.20 of this title denying a motion to vacate a judgment or
14 sentence, when the applicant proceeded without counsel in the court
15 below after having applied for and been denied counsel under subdivision
16 one of section 440.30 of this title, except when the court properly
17 refused to assign counsel based on the applicant's financial ability to
18 retain counsel, the intermediate appellate court may reverse the order,
19 direct the court to assign counsel, and remit the matter for de novo
20 consideration. Such corrective action is authorized when the intermedi-
21 ate appellate court determines that additional factual or legal develop-
22 ment is necessary and appropriate in the interest of justice to properly
23 resolve the merits of the applicant's legal claim or claims. Nothing in
24 this subdivision shall be construed to limit an intermediate appellate
25 court's authority to remit a matter to the trial court for further
26 proceedings in any other circumstance.
27 § 6. Section 450.10 of the criminal procedure law, as amended by chap-
28 ter 671 of the laws of 1971, subdivisions 1 and 2 as amended by chapter
29 671 of the laws of 1984, subdivision 3 as added by chapter 516 of the
30 laws of 1986, subdivision 4 as renumbered by chapter 516 of the laws of
31 1986, and subdivision 5 as added by chapter 560 of the laws of 1999, is
32 amended to read as follows:
33 § 450.10 Appeal by [defendant] petitioner to intermediate appellate
34 court; in what cases authorized as of right.
35 An appeal to an intermediate appellate court may be taken as of right
36 by the [defendant] petitioner from the following judgment, sentence and
37 order of a criminal court:
38 1. A judgment other than one including a sentence of death[, unless
39 the appeal is based solely upon the ground that a sentence was harsh or
40 excessive when such sentence was predicated upon entry of a plea of
41 guilty and the sentence imposed did not exceed that which was agreed to
42 by the defendant as a condition of the plea and set forth on the record
43 or filed with the court as required by subdivision five of section
44 220.50 or subdivision four of section 340.20;].
45 2. A sentence other than one of death, as prescribed in subdivision
46 one of section 450.30[, unless the appeal is based solely upon the
47 ground that a sentence was harsh or excessive when such sentence was
48 predicated upon entry of a plea of guilty and the sentence imposed did
49 not exceed that which was agreed to by the defendant as a condition of
50 the plea and set forth in the record or filed with the court as required
51 by subdivision five of section 220.50 or subdivision four of section
52 340.20;] of this title.
53 3. An order denying a motion, made pursuant to section 440.10 or
54 440.11 of this title, to vacate a judgment other than one including a
55 sentence of death; provided however that the intermediate appellate
56 court, may, after motion by the people upon notice to the petitioner,
A. 7422--B 14
1 dismiss the notice of appeal on the grounds that the motion to vacate
2 the judgment is unsupported by sworn statements of fact or is wholly
3 unsupported by law or by any good faith argument in support of an exten-
4 sion thereof.
5 4. An order denying a motion, made pursuant to section 440.20 of this
6 title, to set aside a sentence other than one including a sentence of
7 death; provided however that the intermediate appellate court may, after
8 motion by the people upon notice to the petitioner dismiss the notice of
9 appeal on the grounds that the motion to vacate the sentence is unsup-
10 ported by sworn statements of fact or is wholly unsupported by law or by
11 any good faith argument in support of an extension thereof.
12 5. A sentence including an order of criminal forfeiture entered pursu-
13 ant to section 460.30 of the penal law with respect to such forfeiture
14 order.
15 [4.] 6. An order, entered pursuant to section 440.40 of this title,
16 setting aside a sentence other than one of death, upon motion of the
17 People.
18 [5.] 7. An order denying a motion, made pursuant to subdivision
19 [one-a] four of section 440.30 of this title, for forensic DNA testing
20 of evidence.
21 § 7. Section 450.15 of the criminal procedure law is REPEALED.
22 § 8. Subdivision 1 of section 450.30 of the criminal procedure law, as
23 amended by chapter 671 of the laws of 1984, is amended to read as
24 follows:
25 1. An appeal by the [defendant] petitioner from a sentence, as
26 authorized by subdivision two of section 450.10, may be based upon the
27 ground that such sentence either was (a) invalid as a matter of law, or
28 (b) harsh or excessive. A sentence is invalid as a matter of law not
29 only when the terms thereof are unauthorized but also when it is based
30 upon an erroneous determination that the [defendant] petitioner had a
31 previous valid conviction for an offense or, in the case of a resentence
32 following a revocation of a sentence of probation or conditional
33 discharge, upon an improper revocation of such original sentence. [An
34 appeal by the defendant from a sentence, as authorized by subdivision
35 three of section 450.15, may be based upon the ground that such sentence
36 was harsh or excessive.]
37 § 9. Subdivision 1 of section 450.90 of the criminal procedure law, as
38 amended by chapter 31 of the laws of 2019, is amended to read as
39 follows:
40 1. Provided that a certificate granting leave to appeal is issued
41 pursuant to section 460.20, an appeal may, except as provided in subdi-
42 vision two, be taken to the court of appeals by either the defendant or
43 the people from any adverse or partially adverse order of an intermedi-
44 ate appellate court entered upon an appeal taken to such intermediate
45 appellate court pursuant to section 450.10, [450.15,] or 450.20, or from
46 an order granting or denying a motion to set aside an order of an inter-
47 mediate appellate court on the ground of ineffective assistance or
48 wrongful deprivation of appellate counsel, or by either the defendant or
49 the people from any adverse or partially adverse order of an intermedi-
50 ate appellate court entered upon an appeal taken to such intermediate
51 appellate court from an order entered pursuant to section 440.46 or
52 section 440.47 of this chapter. An order of an intermediate appellate
53 court is adverse to the party who was the appellant in such court when
54 it affirms the judgment, sentence or order appealed from, and is adverse
55 to the party who was the respondent in such court when it reverses the
56 judgment, sentence or order appealed from. An appellate court order
A. 7422--B 15
1 which modifies a judgment or order appealed from is partially adverse to
2 each party.
3 § 10. Subdivision 4 of section 460.10 of the criminal procedure law is
4 REPEALED.
5 § 11. Paragraph (a) of subdivision 1 of section 460.60 of the criminal
6 procedure law, as amended by chapter 168 of the laws of 1981, is amended
7 to read as follows:
8 (a) A judge who, pursuant to section 460.20 of this [chapter] article,
9 has received an application for a certificate granting a defendant leave
10 to appeal to the court of appeals from an order of an intermediate
11 appellate court affirming or modifying a judgment including a sentence
12 of imprisonment[,] or a sentence of imprisonment, [or an order appealed
13 pursuant to section 450.15 of this chapter,] of a criminal court, may,
14 upon application of such defendant-appellant issue an order both (i)
15 staying or suspending the execution of the judgment pending the determi-
16 nation of the application for leave to appeal, and, if that application
17 is granted, staying or suspending the execution of the judgment pending
18 the determination of the appeal, and (ii) either releasing the defend-
19 ant on [his] their own recognizance or continuing bail as previously
20 determined or fixing bail pursuant to the provisions of article five
21 hundred thirty of this chapter. Such an order is effective immediately
22 and that phase of the order staying or suspending execution of the judg-
23 ment does not become effective unless and until the defendant is
24 released, either on [his] their own recognizance or upon the posting of
25 bail.
26 § 12. Subdivision 4 of section 722 of the county law, as amended by
27 chapter 141 of the laws of 2008, is amended to read as follows:
28 4. Representation according to a plan containing a combination of any
29 of the foregoing. Any judge, justice or magistrate in assigning counsel
30 pursuant to sections 170.10, 180.10, 210.15 and 720.30 of the criminal
31 procedure law, or in assigning counsel pursuant to subdivision one of
32 section 440.30 of the criminal procedure law, or in assigning counsel to
33 [a defendant] an applicant when a hearing has been ordered in a proceed-
34 ing upon a motion, pursuant to article four hundred forty of the crimi-
35 nal procedure law, to vacate a judgment or to set aside a sentence [or
36 on a motion for a writ of error coram nobis], or in assigning counsel to
37 an applicant in connection with an appeal therefrom pursuant to section
38 450.10 or 450.20 of the criminal procedure law, or in assigning counsel
39 pursuant to the provisions of section two hundred sixty-two of the fami-
40 ly court act or section four hundred seven of the surrogate's court
41 procedure act, or in assigning counsel to [a defendant] an applicant
42 when a case has been calendared for consideration of resentencing pursu-
43 ant to subdivision four of section six hundred one-d of the correction
44 law or when a court is otherwise called upon to consider whether a prop-
45 er term of post-release supervision was imposed as part of a determinate
46 sentence, shall assign counsel furnished in accordance with a plan
47 conforming to the requirements of this section; provided, however, that
48 when the county or the city in which a county is wholly contained has
49 not placed in operation a plan conforming to that prescribed in this
50 subdivision or subdivision three of this section and the judge, justice
51 or magistrate is satisfied that a conflict of interest prevents the
52 assignment of counsel pursuant to the plan in operation, or when the
53 county or the city in which a county is wholly contained has not placed
54 in operation any plan conforming to that prescribed in this section, the
55 judge, justice or magistrate may assign any attorney in such county or
56 city and, in such event, such attorney shall receive compensation and
A. 7422--B 16
1 reimbursement from such county or city which shall be at the same rate
2 as is prescribed in section seven hundred twenty-two-b of this article.
3 When a case has been calendared for consideration of resentencing pursu-
4 ant to subdivision four of section six hundred one-d of the correction
5 law or when a court is otherwise called upon to consider whether a prop-
6 er term of post-release supervision was imposed as part of a determinate
7 sentence, the attorney appointed should be the attorney who appeared for
8 the [defendant] applicant in connection with the judgment or sentence
9 or, if the [defendant] applicant is currently represented concerning
10 [his or her] their conviction or sentence or with respect to an appeal
11 from [his or her] their conviction or sentence, such present counsel.
12 § 13. Section 216 of the judiciary law is amended by adding a new
13 subdivision 7 to read as follows:
14 7. The chief administrator of the courts shall collect data and report
15 every year in relation to applications and motions filed pursuant to
16 article four hundred forty of the criminal procedure law, broken down by
17 each section of such article to include motions filed pursuant to
18 sections 440.10, 440.20, 440.40, 440.46, 440.46-a, and 440.47 of the
19 criminal procedure law. Information to be collected and disclosed shall
20 include the raw number of both applications and/or motions filed in each
21 county and on appeal in each judicial department. Information shall
22 include the top conviction charge for each application or motion; when
23 pro se applicants request assignment of counsel pursuant to subdivision
24 two of section 440.30 of the criminal procedure law, whether or not
25 counsel was assigned; the outcome of each motion filed, whether denied
26 without hearing, denied with hearing, vacatur granted, or other; and the
27 average length of time motion under article four hundred forty of the
28 criminal procedure law remains pending for each county. Such report
29 shall aggregate the data collected by county and judicial department.
30 The data shall be aggregated in order to protect the identity of indi-
31 vidual applicants. The report shall be released publicly and published
32 on the websites of the office of court administration and the division
33 of criminal justice services. The first report shall be published twelve
34 months after this subdivision shall have become a law, and shall include
35 data from the first six months following the effective date of this
36 subdivision. Reports for subsequent periods shall be published annually
37 thereafter.
38 § 14. Severability. If any provision of this act, or any application
39 of any provision of this act, is held to be invalid, that shall not
40 affect the validity or effectiveness of any other provision of this act,
41 or of any other application of any provision of this act, which can be
42 given effect without that provision or application; and to that end, the
43 provisions and applications of this act are severable.
44 § 15. This act shall take effect on the sixtieth day after it shall
45 have become a law and shall apply to all motions filed on or after such
46 effective date, and to motions filed prior to such effective date that
47 are pending on such effective date either in the trial court or on
48 appeal, and to motions for which the applicant's time to seek permission
49 to appeal has not expired by such effective date.
