Add §§440.00 & 440.11, amd §§440.10, 440.20, 440.30 & 450.10, rpld §450.10 sub 5, CP L
Relates to motions to vacate judgment; authorizes filing motions to vacate judgment due to a change in law; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea; relates to the requirements of discovery.
STATE OF NEW YORK
________________________________________________________________________
266--A
2021-2022 Regular Sessions
IN SENATE(Prefiled)
January 6, 2021
___________
Introduced by Sens. MYRIE, BAILEY, BIAGGI, BRISPORT, BROUK, CLEARE,
COMRIE, COONEY, GIANARIS, HOYLMAN, JACKSON, KAVANAGH, KRUEGER, LIU,
MAY, RAMOS, REICHLIN-MELNICK, RIVERA, SALAZAR, SAVINO, SEPULVEDA --
read twice and ordered printed, and when printed to be committed to
the Committee on Codes -- recommitted to the Committee on Codes in
accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law, in relation to motions to
vacate judgment; and to repeal certain provisions of such law relating
thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding two new
2 sections 440.00 and 440.11 to read as follows:
3 § 440.00 Definition.
4 As used in this article, the term "applicant" means a person previous-
5 ly convicted of a crime who is applying for relief under this article.
6 § 440.11 Motion to vacate judgment; change in the law.
7 1. At any time after the entry of a judgment obtained at trial or by
8 plea, the court in which it was entered may, upon motion of the appli-
9 cant, vacate such judgment upon the ground that:
10 (a) The applicant was convicted of any offense in the state of New
11 York which has been subsequently decriminalized and is thus a legal
12 nullity.
13 (b) There has been a change, whether substantive or procedural, in the
14 law or laws applied in the process leading to the applicant's conviction
15 where sufficient reason exists to allow retroactive application of the
16 changed legal standard.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01711-03-2
S. 266--A 2
1 2. If the court grants a motion under this section, it must vacate the
2 judgment on the merits, dismiss the accusatory instrument, seal the
3 judgment, and may take such additional action as is appropriate in the
4 circumstances.
5 § 2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
6 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph (h)
7 of subdivision 1, paragraph (a) of subdivision 3 and subdivision 4 as
8 amended and subdivisions 7 and 8 as renumbered by chapter 332 of the
9 laws of 2010, paragraph (i) of subdivision 1 and subdivision 6 as
10 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
11 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
12 vision 1 as amended by chapter 92 of the laws of 2021, paragraphs (b)
13 and (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
14 and subdivision 9 as added by section 4 of part OO of chapter 55 of the
15 laws of 2019, is amended to read as follows:
16 § 440.10 Motion to vacate judgment.
17 1. At any time after the entry of a judgment obtained at trial or by
18 plea, the court in which it was entered may, upon motion of the [defend-
19 ant] applicant, vacate such judgment upon the ground that:
20 (a) The court did not have jurisdiction of the action or of the person
21 of the [defendant] applicant; or
22 (b) The judgment was procured by duress, misrepresentation or fraud on
23 the part of the court or a prosecutor or a person acting for or in
24 behalf of a court or a prosecutor; or
25 (c) [Material evidence] Evidence adduced at a trial resulting in the
26 judgment or that was relied upon by any party as a basis for a plea
27 agreement was false [and was, prior to the entry of the judgment, known
28 by the prosecutor or by the court to be false]; or
29 (d) [Material evidence] Evidence adduced by the people at a trial
30 resulting in the judgment or that was relied upon by any party as a
31 basis for a plea agreement was procured in violation of the [defend-
32 ant's] applicant's rights under the constitution of this state or of the
33 United States; or
34 (e) During the proceedings resulting in the judgment, the [defendant]
35 applicant, by reason of mental disease or defect, was incapable of
36 understanding or participating in such proceedings; or
37 (f) Improper [and prejudicial] conduct not appearing in the record
38 occurred during a trial resulting in the judgment which conduct, if it
39 had appeared in the record, would have [required] made possible a
40 reversal of the judgment upon an appeal therefrom; or
41 (g) New evidence has been discovered [since the entry of a judgment
42 based upon a verdict of guilty after trial, which could not have been
43 produced by the defendant at the trial even with due diligence on his
44 part and which] or become available that, when viewed alone or with
45 other evidence, is of such character as to create a reasonable probabil-
46 ity that had such evidence been received at the trial or discovered
47 prior to trial or plea agreement that the verdict or plea would have
48 been more favorable to the [defendant; provided that a motion based upon
49 such ground must be made with due diligence after the discovery of such
50 alleged new evidence] applicant. Types of new evidence shall include,
51 but not be limited to newly available forensic evidence or evidence that
52 has either been repudiated by the expert who originally provided the
53 opinion at a hearing or trial or that has been undermined by later
54 scientific research or technological advances; or
55 (g-1) [Forensic DNA] In cases involving the forensic testing of
56 evidence performed since the entry of a judgment, [(1) in the case of a
S. 266--A 3
1 defendant convicted after a guilty plea, the court has determined that
2 the defendant has demonstrated a substantial probability that the
3 defendant was actually innocent of the offense of which he or she was
4 convicted, or (2) in the case of a defendant convicted after a trial,]
5 the court has determined that there exists a reasonable probability that
6 the verdict or plea offer would have been more favorable to the [defend-
7 ant] applicant, or the applicant would have rejected the plea offer.
8 (h) The judgment was obtained in violation of a right of the [defend-
9 ant] applicant under the constitution of this state or of the United
10 States, including, but not limited to, a judgment entered, whether upon
11 trial or guilty plea, against an applicant who is actually innocent. An
12 applicant is actually innocent where the applicant proves by a prepon-
13 derance of the evidence that no reasonable jury of the applicant's peers
14 would have found the applicant guilty beyond a reasonable doubt; or
15 (i) The judgment is a conviction where the [defendant's] applicant's
16 participation in the offense was a result of having been a victim of sex
17 trafficking under section 230.34 of the penal law, sex trafficking of a
18 child under section 230.34-a of the penal law, labor trafficking under
19 section 135.35 of the penal law, aggravated labor trafficking under
20 section 135.37 of the penal law, compelling prostitution under section
21 230.33 of the penal law, or trafficking in persons under the Trafficking
22 Victims Protection Act (United States Code, title 22, chapter 78);
23 provided that
24 (i) official documentation of the [defendant's] applicant's status as
25 a victim of sex trafficking, labor trafficking, aggravated labor traf-
26 ficking, compelling prostitution, or trafficking in persons at the time
27 of the offense from a federal, state or local government agency shall
28 create a presumption that the [defendant's] applicant's participation in
29 the offense was a result of having been a victim of sex trafficking,
30 labor trafficking, aggravated labor trafficking, compelling prostitution
31 or trafficking in persons, but shall not be required for granting a
32 motion under this paragraph;
33 (ii) a motion under this paragraph, and all pertinent papers and docu-
34 ments, shall be confidential and may not be made available to any person
35 or public or private [entity] agency except [where] when specifically
36 authorized by the court; and
37 (iii) when a motion is filed under this paragraph, the court may, upon
38 the consent of the petitioner and all of the involved state [and] or
39 local prosecutorial agencies [that prosecuted each matter], consolidate
40 into one proceeding a motion to vacate judgments imposed by distinct or
41 multiple criminal courts; or
42 (j) The judgment is a conviction for [a class A or unclassified] any
43 misdemeanor entered prior to the effective date of this paragraph [and
44 satisfies the ground prescribed in paragraph (h) of this subdivision]
45 that resulted in ongoing collateral consequences, including potential or
46 actual immigration consequences. There shall be a rebuttable presump-
47 tion that a conviction by plea to such an offense was not knowing,
48 voluntary and intelligent, [based on ongoing collateral consequences,
49 including potential or actual immigration consequences, and there] and
50 thus rendered the plea constitutionally defective pursuant to paragraph
51 (h) of this subdivision. There shall be a rebuttable presumption that a
52 conviction by verdict to such an offense constitutes cruel and unusual
53 punishment under section five of article one of the state constitution
54 based on such consequences and thus rendered the verdict constitu-
55 tionally defective pursuant to paragraph (h) of this subdivision; or
S. 266--A 4
1 (j-1) The judgment is a conviction for a class D or E felony entered
2 prior to the effective date of this paragraph for which the sentence
3 imposed was one year, and such sentence resulted in ongoing collateral
4 consequences, including potential or actual immigration consequences.
5 There shall be a rebuttable presumption that a conviction by plea to
6 such an offense was not knowing, voluntary and intelligent, and thus
7 rendered the plea constitutionally defective pursuant to paragraph (h)
8 of this subdivision. There shall be a rebuttable presumption that a
9 conviction by verdict to such an offense constitutes cruel and unusual
10 punishment under section five of article one of the state constitution
11 based on such consequences, and thus rendered the verdict constitu-
12 tionally defective pursuant to paragraph (h) of this subdivision; or
13 (k) The judgment occurred prior to the effective date of the laws of
14 two thousand [twenty-one] twenty-two that amended this paragraph and is
15 a conviction for an offense as defined in [subparagraphs] subparagraph
16 (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of
17 section 160.50 of this part, or a misdemeanor under the former article
18 two hundred twenty-one of the penal law, in which case the court shall
19 presume that a conviction by plea for the aforementioned offenses was
20 not knowing, voluntary and intelligent if it has severe or ongoing
21 consequences, including but not limited to potential or actual immi-
22 gration consequences, and shall presume that a conviction by verdict for
23 the aforementioned offenses constitutes cruel and unusual punishment
24 under section five of article one of the state constitution, based on
25 those consequences. The people may rebut these presumptions[.]; or
26 (l) Any offense in the state of New York that an intermediate appel-
27 late court, court of appeals, or United States federal court has deemed
28 in violation of the constitution of this state or of the United States,
29 or any other right under state or federal law.
30 2. Notwithstanding the provisions of subdivision one, the court [must]
31 may deny a motion to vacate a judgment when:
32 (a) The ground or issue raised upon the motion was previously deter-
33 mined on the merits upon an appeal from the judgment, unless since the
34 time of such appellate determination there has been a retroactively
35 effective change in the law controlling such issue. However, if all of
36 the evidence currently before the court was not duly considered previ-
37 ously by the court, the court shall grant the motion or order the hear-
38 ing; or
39 (b) The judgment is, at the time of the motion, appealable or pending
40 on appeal, and sufficient facts appear on the record with respect to the
41 ground or issue raised upon the motion to permit adequate review thereof
42 upon such an appeal unless the issue raised upon such motion is ineffec-
43 tive assistance of counsel. This paragraph shall not apply to a motion
44 under paragraph (i), (j), (k) or (l) of subdivision one of this section;
45 or
46 (c) [Although sufficient facts appear on the record of the proceedings
47 underlying the judgment to have permitted, upon appeal from such judg-
48 ment, adequate review of the ground or issue raised upon the motion, no
49 such appellate review or determination occurred owing to the defendant's
50 unjustifiable failure to take or perfect an appeal during the prescribed
51 period or to his or her unjustifiable failure to raise such ground or
52 issue upon an appeal actually perfected by him or her unless the issue
53 raised upon such motion is ineffective assistance of counsel; or
54 (d)] The ground or issue raised relates solely to the validity of the
55 sentence and not to the validity of the conviction. In such case, the
S. 266--A 5
1 court shall deem the motion to have been made pursuant to section 440.20
2 of this article.
3 [3. Notwithstanding the provisions of subdivision one, the court may
4 deny a motion to vacate a judgment when:
5 (a) Although facts in support of the ground or issue raised upon the
6 motion could with due diligence by the defendant have readily been made
7 to appear on the record in a manner providing adequate basis for review
8 of such ground or issue upon an appeal from the judgment, the defendant
9 unjustifiably failed to adduce such matter prior to sentence and the
10 ground or issue in question was not subsequently determined upon appeal.
11 This paragraph does not apply to a motion based upon deprivation of the
12 right to counsel at the trial or upon failure of the trial court to
13 advise the defendant of such right, or to a motion under paragraph (i)
14 of subdivision one of this section; or
15 (b) The ground or issue raised upon the motion was previously deter-
16 mined on the merits upon a prior motion or proceeding in a court of this
17 state, other than an appeal from the judgment, or upon a motion or
18 proceeding in a federal court; unless since the time of such determi-
19 nation there has been a retroactively effective change in the law
20 controlling such issue; or
21 (c) Upon a previous motion made pursuant to this section, the defend-
22 ant was in a position adequately to raise the ground or issue underlying
23 the present motion but did not do so.]
24 (d) Although the court may deny the motion under any of the circum-
25 stances specified in this subdivision, in the interest of justice and
26 for good cause shown it may in its discretion grant the motion if it is
27 otherwise meritorious and vacate the judgment.
28 [4.] 3. If the court grants the motion, it must, except as provided in
29 subdivision [five] four or [six] five of this section, vacate the judg-
30 ment, and must either:
31 (a) dismiss and seal the accusatory instrument, or
32 (b) order a new trial, or
33 (c) take such other action as is appropriate in the circumstances.
34 [5.] 4. Upon granting the motion upon the ground, as prescribed in
35 paragraph (g) of subdivision one, that newly discovered evidence creates
36 a probability that had such evidence been received at the trial the
37 verdict would have been more favorable to the [defendant] applicant in
38 that the conviction would have been for a lesser offense than the one
39 contained in the verdict, the court may either:
40 (a) Vacate the judgment and order a new trial; or
41 (b) With the consent of the people, modify the judgment by reducing it
42 to one of conviction for such lesser offense. In such case, the court
43 must re-sentence the [defendant] applicant accordingly.
44 [6.] 5. If the court grants a motion under [paragraph (i) or] para-
45 graph [(k)] (h), (i), (j), (k) or (l) of subdivision one of this
46 section, it must vacate the judgment [and] on the merits, dismiss the
47 accusatory instrument, seal the judgment, and may take such additional
48 action as is appropriate in the circumstances. [In the case of a motion
49 granted under paragraph (i) of subdivision one of this section, the
50 court must vacate the judgment on the merits because the defendant's
51 participation in the offense was a result of having been a victim of
52 trafficking.
53 7.] 6. Upon a new trial resulting from an order vacating a judgment
54 pursuant to this section, the indictment is deemed to contain all the
55 counts and to charge all the offenses which it contained and charged at
56 the time the previous trial was commenced, regardless of whether any
S. 266--A 6
1 count was dismissed by the court in the course of such trial, except (a)
2 those upon or of which the [defendant] applicant was acquitted or deemed
3 to have been acquitted, and (b) those dismissed by the order vacating
4 the judgment, and (c) those previously dismissed by an appellate court
5 upon an appeal from the judgment, or by any court upon a previous post-
6 judgment motion.
7 [8.] 7. Upon an order which vacates a judgment based upon a plea of
8 guilty to an accusatory instrument or a part thereof, but which does not
9 dismiss the entire accusatory instrument, the criminal action is, in the
10 absence of an express direction to the contrary, restored to its
11 [prepleading] pre-pleading status and the accusatory instrument is
12 deemed to contain all the counts and to charge all the offenses which it
13 contained and charged at the time of the entry of the plea, except those
14 subsequently dismissed under circumstances specified in paragraphs (b)
15 and (c) of subdivision six. Where the plea of guilty was entered and
16 accepted, pursuant to subdivision three of section 220.30, upon the
17 condition that it constituted a complete disposition not only of the
18 accusatory instrument underlying the judgment vacated but also of one or
19 more other accusatory instruments against the [defendant] applicant then
20 pending in the same court, the order of vacation completely restores
21 such other accusatory instruments; and such is the case even though such
22 order dismisses the main accusatory instrument underlying the judgment.
23 [9.] 8. Upon granting of a motion pursuant to paragraph (j) of subdi-
24 vision one of this section, the court [may] must vacate the judgment and
25 may, in addition to the remedies in subdivision three of this section,
26 either:
27 (a) With the consent of the people, [vacate the judgment or] modify
28 the judgment by reducing it to one of conviction for a lesser offense or
29 allow the applicant to replead to a disposition agreed upon by the
30 parties; or
31 (b) [Vacate the judgment and order a new trial wherein the defendant
32 enters] Permit the applicant to enter a plea to the same offense [in
33 order to permit the court to] and resentence the [defendant] applicant
34 in accordance with the amendatory provisions of subdivision one-a of
35 section 70.15 of the penal law.
36 9. Upon granting of a motion pursuant to paragraph j-1 of subdivision
37 one of this section, the court must vacate the judgment and permit the
38 applicant to enter a plea to the same offense in order to permit the
39 court to resentence the applicant to three hundred sixty-four days.
40 10. Notwithstanding any other provision of this section, the court
41 must order a hearing and address the merits of any claim for relief when
42 the applicant asserts that, in light of all available evidence, there
43 exists a colorable claim that he or she is actually innocent. When the
44 applicant raises an actual innocence claim based on, in whole or part,
45 new evidence of actual innocence, the court may not summarily deny the
46 motion on the ground that the applicant previously moved for relief
47 under this article.
48 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as
49 amended by chapter 1 of the laws of 1995, is amended to read as follows:
50 § 440.20 Motion to set aside sentence; by [defendant] applicant.
51 1. At any time after the entry of a judgment, the court in which the
52 judgment was entered may, upon motion of the [defendant] applicant, set
53 aside the sentence upon the ground that it was unauthorized, illegally
54 imposed, exceeded the maximum allowed by law, obtained or imposed in
55 violation of the defendant's constitutional rights, or was otherwise
56 invalid as a matter of law. Where the judgment includes a sentence of
S. 266--A 7
1 death, the court may also set aside the sentence upon any of the grounds
2 set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of
3 section 440.10 as applied to a separate sentencing proceeding under
4 section 400.27, provided, however, that to the extent the ground or
5 grounds asserted include one or more of the aforesaid paragraphs of
6 subdivision one of section 440.10, the court must also apply [subdivi-
7 sions] subdivision two [and three] of section 440.10, other than para-
8 graph [(d)] (c) of [subdivision two of] such [section] subdivision, in
9 determining the motion. In the event the court enters an order granting
10 a motion to set aside a sentence of death under this section, the court
11 must either direct a new sentencing proceeding in accordance with
12 section 400.27 or, to the extent that the defendant cannot be resen-
13 tenced to death consistent with the laws of this state or the constitu-
14 tion of this state or of the United States, resentence the defendant to
15 life imprisonment without parole or to a sentence of imprisonment for
16 the class A-I felony of murder in the first degree other than a sentence
17 of life imprisonment without parole. Upon granting the motion upon any
18 of the grounds set forth in the aforesaid paragraphs of subdivision one
19 of section 440.10 and setting aside the sentence, the court must afford
20 the people a reasonable period of time, which shall not be less than ten
21 days, to determine whether to take an appeal from the order setting
22 aside the sentence of death. The taking of an appeal by the people stays
23 the effectiveness of that portion of the court's order that directs a
24 new sentencing proceeding.
25 2. Notwithstanding the provisions of subdivision one, the court
26 [must] may deny such a motion when the ground or issue raised thereupon
27 was previously determined on the merits upon an appeal from the judgment
28 or sentence, unless since the time of such appellate determination there
29 has been a retroactively effective change in the law controlling such
30 issue. However, if all of the evidence currently before the court was
31 not duly considered previously by the court, the court shall not deny
32 the motion to vacate and instead shall order a hearing or grant the
33 motion. Even if the court has already considered all of the evidence
34 currently before the court, the court in the interest of justice and for
35 good cause shown may grant the motion if it is otherwise meritorious.
36 3. [Notwithstanding the provisions of subdivision one, the court may
37 deny such a motion when the ground or issue raised thereupon was previ-
38 ously determined on the merits upon a prior motion or proceeding in a
39 court of this state, other than an appeal from the judgment, or upon a
40 prior motion or proceeding in a federal court, unless since the time of
41 such determination there has been a retroactively effective change in
42 the law controlling such issue. Despite such determination, however,
43 the court in the interest of justice and for good cause shown, may in
44 its discretion grant the motion if it is otherwise meritorious.
45 4.] An order setting aside a sentence pursuant to this section does
46 not affect the validity or status of the underlying conviction, and
47 after entering such an order the court must resentence the [defendant]
48 applicant in accordance with the law.
49 § 4. Section 440.30 of the criminal procedure law, subdivisions 1 and
50 1-a as amended by chapter 19 of the laws of 2012 and the opening para-
51 graph of paragraph (b) of subdivision 1 as amended by section 10 of part
52 LLL of chapter 59 of the laws of 2019, is amended to read as follows:
53 § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
54 1. (a) [A] An application for a motion to vacate a judgment pursuant
55 to section 440.10 or 440.11 of this article and a motion to set aside a
56 sentence pursuant to section 440.20 of this article must be made in
S. 266--A 8
1 writing by the applicant or their counsel to the judge or justice who
2 imposed the original sentence and upon reasonable notice to the people.
3 [Upon the motion, a defendant] If, at the time of such person's request
4 to apply for relief pursuant to this article, the original sentencing
5 judge or justice no longer works in the court in which the original
6 sentence was imposed, then the request shall be randomly assigned to
7 another judge or justice of the court in which the original sentence was
8 imposed.
9 (b) Upon the submission of an application for relief under this arti-
10 cle, unless the applicant is represented by counsel or affirmatively
11 states an intention to represent themselves pro se, the court shall
12 assign defense counsel if the applicant is indigent or otherwise quali-
13 fies for free representation in accordance with the provisions of subdi-
14 vision one of section seven hundred seventeen and subdivision four of
15 section seven hundred twenty-two of the county law and the related
16 provisions of article eighteen-A of such law.
17 (c) Upon making a determination as to assignment of counsel, the court
18 shall also promptly order the disclosure of discovery to the person
19 applying for relief and his or her counsel. The order of disclosure of
20 discovery shall include that:
21 (i) The people produce all items and information that relate to the
22 subject matter of the case and are in the possession, custody and
23 control of the prosecution or persons under their direction or control
24 and make available for inspection any physical evidence secured in
25 connection with the investigation or prosecution of the applicant,
26 including all evidence that would be discoverable pursuant to section
27 245.20 of this part; and
28 (ii) The applicant's prior trial and appellate counsel shall make
29 available to the applicant or his or her counsel their complete files
30 relating to the case; and
31 (iii) Court clerks and probation departments shall make available to
32 the applicant or his or her counsel the court files or probation records
33 pertaining to the case; and
34 (iv) Nothing in this section shall preclude the court from conducting
35 an in camera inspection of evidence and issuing a protective order
36 pursuant to section 245.70 of this part at the request of the prose-
37 cution or defense.
38 (v) The discovery order will require that the people and prior defense
39 counsel turn over all relevant discovery to the person applying for
40 relief or their counsel no later than thirty days from the issuance of
41 the court's discovery order.
42 (d) (i) An applicant who is in a position adequately to raise more
43 than one ground should raise every such ground upon which he or she
44 intends to challenge the judgment or sentence. If the motion is based
45 upon the existence or occurrence of facts, the motion papers [must] may
46 contain sworn allegations thereof, whether by the [defendant] applicant
47 or by another person or persons. Such sworn allegations may be based
48 upon personal knowledge of the affiant or upon information and belief,
49 provided that in the latter event the affiant must state the sources of
50 such information and the grounds of such belief. The [defendant] appli-
51 cant may further submit documentary evidence or information supporting
52 or tending to support the allegations of the moving papers.
53 (ii) The people may file with the court, and in such case must serve a
54 copy thereof upon the [defendant] applicant or his or her counsel, if
55 any, an answer denying or admitting any or all of the allegations of the
S. 266--A 9
1 motion papers, and may further submit documentary evidence or informa-
2 tion refuting or tending to refute such allegations.
3 (iii) After all papers of both parties have been filed, and after all
4 documentary evidence or information, if any, has been submitted, the
5 court must consider the same for the purpose of ascertaining whether the
6 motion is determinable without a hearing to resolve questions of fact.
7 [(b) In conjunction with the filing or consideration of a motion to
8 vacate a judgment pursuant to section 440.10 of this article by a
9 defendant convicted after a trial, in cases where the court has ordered
10 an evidentiary hearing upon such motion, the court may order that the
11 people produce or make available for inspection property in its
12 possession, custody, or control that was secured in connection with the
13 investigation or prosecution of the defendant upon credible allegations
14 by the defendant and a finding by the court that such property, if
15 obtained, would be probative to the determination of defendant's actual
16 innocence, and that the request is reasonable. The court shall deny or
17 limit such a request upon a finding that such a request, if granted,
18 would threaten the integrity or chain of custody of property or the
19 integrity of the processes or functions of a laboratory conducting DNA
20 testing, pose a risk of harm, intimidation, embarrassment, reprisal, or
21 other substantially negative consequences to any person, undermine the
22 proper functions of law enforcement including the confidentiality of
23 informants, or on the basis of any other factor identified by the court
24 in the interests of justice or public safety. The court shall further
25 ensure that any property produced pursuant to this paragraph is subject
26 to a protective order, where appropriate. The court shall deny any
27 request made pursuant to this paragraph where:
28 (i) (1) the defendant's motion pursuant to section 440.10 of this
29 article does not seek to demonstrate his or her actual innocence of the
30 offense or offenses of which he or she was convicted that are the
31 subject of the motion, or (2) the defendant has not presented credible
32 allegations and the court has not found that such property, if obtained,
33 would be probative to the determination of the defendant's actual inno-
34 cence and that the request is reasonable;
35 (ii) the defendant has made his or her motion after five years from
36 the date of the judgment of conviction; provided, however, that this
37 limitation period shall be tolled for five years if the defendant is in
38 custody in connection with the conviction that is the subject of his or
39 her motion, and provided further that, notwithstanding such limitation
40 periods, the court may consider the motion if the defendant has shown:
41 (A) that he or she has been pursuing his or her rights diligently and
42 that some extraordinary circumstance prevented the timely filing of the
43 motion; (B) that the facts upon which the motion is predicated were
44 unknown to the defendant or his or her attorney and could not have been
45 ascertained by the exercise of due diligence prior to the expiration of
46 the statute of limitations; or (C) considering all circumstances of the
47 case including but not limited to evidence of the defendant's guilt, the
48 impact of granting or denying such motion upon public confidence in the
49 criminal justice system, or upon the safety or welfare of the community,
50 and the defendant's diligence in seeking to obtain the requested proper-
51 ty or related relief, the interests of justice would be served by
52 considering the motion;
53 (iii) the defendant is challenging a judgment convicting him or her of
54 an offense that is not a felony defined in section 10.00 of the penal
55 law; or
S. 266--A 10
1 (iv) upon a finding by the court that the property requested in this
2 motion would be available through other means through reasonable efforts
3 by the defendant to obtain such property.
4 1-a.] 2. (a) [(1)] (i) Where the [defendant's] applicant's motion
5 requests the performance of a forensic DNA test on specified evidence,
6 and upon the court's determination that any evidence containing deoxyri-
7 bonucleic acid ("DNA") was secured in connection with the trial or the
8 plea resulting in the judgment, the court shall grant the application
9 for forensic DNA testing of such evidence [upon its determination that
10 if a DNA test had been conducted on such evidence, and if the results
11 had been admitted in the trial resulting in the judgment, there exists a
12 reasonable probability that the verdict would have been more favorable
13 to the defendant.
14 (2) Where the defendant's motion for forensic DNA testing of specified
15 evidence is made following a plea of guilty and entry of judgment there-
16 on convicting him or her of: (A) a homicide offense defined in article
17 one hundred twenty-five of the penal law, any felony sex offense defined
18 in article one hundred thirty of the penal law, a violent felony offense
19 as defined in paragraph (a) of subdivision one of section 70.02 of the
20 penal law, or (B) any other felony offense to which he or she pled guil-
21 ty after being charged in an indictment or information in superior court
22 with one or more of the offenses listed in clause (A) of this subpara-
23 graph, then the court shall grant such a motion upon its determination
24 that evidence containing DNA was secured in connection with the investi-
25 gation or prosecution of the defendant, and if a DNA test had been
26 conducted on such evidence and the results had been known to the parties
27 prior to the entry of the defendant's plea and judgment thereon, there
28 exists a substantial probability that the evidence would have estab-
29 lished the defendant's actual innocence of the offense or offenses that
30 are the subject of the defendant's motion; provided, however, that:
31 (i) the court shall consider whether the defendant had the opportunity
32 to request such testing prior to entering a guilty plea, and, where it
33 finds that the defendant had such opportunity and unjustifiably failed
34 to do so, the court may deny such motion; and
35 (ii) a court shall deny the defendant's motion for forensic DNA test-
36 ing where the defendant has made his or her motion more than five years
37 after entry of the judgment of conviction; except that the limitation
38 period may be tolled if the defendant has shown: (A) that he or she has
39 been pursuing his or her rights diligently and that some extraordinary
40 circumstance prevented the timely filing of the motion for forensic DNA
41 testing; (B) that the facts upon which the motion is predicated were
42 unknown to the defendant or his or her attorney and could not have been
43 ascertained by the exercise of due diligence prior to the expiration of
44 this statute of limitations; or (C) considering all circumstances of the
45 case including but not limited to evidence of the defendant's guilt, the
46 impact of granting or denying such motion upon public confidence in the
47 criminal justice system, or upon the safety or welfare of the community,
48 and the defendant's diligence in seeking to obtain the requested proper-
49 ty or related relief, the interests of justice would be served by toll-
50 ing such limitation period].
51 (ii) Where the applicant's motion for relief requests the performance
52 of any other testing of forensic evidence or any physical evidence
53 secured in the case, the judge shall grant the application for testing
54 of such evidence, unless there is no reasonable probability that the
55 testing of this evidence could result in a different or improved outcome
56 for the person applying for relief.
S. 266--A 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 his or her counsel with information in the possession of the
4 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 shall grant the
15 applicant's motion and vacate the judgment.
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. Upon considering the merits of the motion, the court must grant it
53 without conducting a hearing and vacate the judgment or set aside the
54 sentence, as the case may be, if:
55 (a) The moving papers allege a ground constituting legal basis for the
56 motion; and
S. 266--A 12
1 (b) Such ground, if based upon the existence or occurrence of facts,
2 is supported by sworn allegations thereof; and
3 (c) The sworn allegations of fact essential to support the motion are
4 either conceded by the people to be true or are conclusively substanti-
5 ated by unquestionable documentary proof.
6 4. Upon considering the merits of the motion, the court may deny it
7 without conducting a hearing if:
8 (a) The moving papers do not allege any ground constituting legal
9 basis for the motion; or
10 (b) [The motion is based upon the existence or occurrence of facts and
11 the moving papers do not contain sworn allegations substantiating or
12 tending to substantiate all the essential facts, as required by subdivi-
13 sion one; or
14 (c)] An allegation of fact essential to support the motion is conclu-
15 sively refuted by unquestionable documentary proof; or
16 [(d)] (c) An allegation of fact essential to support the motion (i) is
17 contradicted by a court record or other official document[, or is made
18 solely by the defendant and is unsupported by any other affidavit or
19 evidence,] and (ii) under these and all the other circumstances attend-
20 ing the case, there is no reasonable possibility that such allegation is
21 true.
22 5. If the court does not determine the motion pursuant to subdivisions
23 two, three or four, it must conduct a hearing and make findings of fact
24 essential to the determination thereof. The [defendant] applicant has a
25 right to be present at such hearing but may waive such right in writing.
26 If he or she does not so waive it and if he or she is confined in a
27 prison or other institution of this state, the court must cause him or
28 her to be produced at such hearing.
29 6. At such a hearing, the [defendant] applicant has the burden of
30 proving by a preponderance of the evidence every fact essential to
31 support the motion. At the hearing, defense counsel shall receive a
32 daily copy of the hearing minutes.
33 7. Regardless of whether a hearing was conducted, the court, upon
34 determining the motion, must set forth on the record its findings of
35 fact, its conclusions of law and the reasons for its determination.
36 § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
37 amended by chapter 671 of the laws of 1971 and as renumbered by chapter
38 516 of the laws of 1986, is amended to read as follows:
39 4. An order, entered pursuant to [section 440.40, setting aside a
40 sentence other than one of death, upon motion of the People] article
41 four hundred forty of this title, shall be authorized to an intermediate
42 appellate court as a matter of right.
43 § 6. Subdivision 5 of section 450.10 of the criminal procedure law is
44 REPEALED.
45 § 7. Severability. If any provision of this act, or any application of
46 any provision of this act, is held to be invalid, that shall not affect
47 the validity or effectiveness of any other provision of this act, or of
48 any other application of any provision of this act, which can be given
49 effect without that provision or application; and to that end, the
50 provisions and applications of this act are severable.
51 § 8. This act shall take effect on the sixtieth day after it shall
52 have become a law; provided, however, that paragraphs (b) and (c) of
53 subdivision 1 of section 440.30 of the criminal procedure law as added
54 by section four of this act shall take effect one year after it shall
55 have become a law.
