Ren Art 23 §§860 & 861 to be Art 24 §§1000 & 1001, add Art 23 §§900 - 906, Judy L
Establishes the state commission for the integrity of the criminal justice system and provides for its powers and duties; such commission shall, upon its own initiative, investigate, hold hearings, and make findings of fact and recommendations on any case in which it is reasonably alleged that a person was wrongfully convicted of an offense in this state.
STATE OF NEW YORK
________________________________________________________________________
4600
2021-2022 Regular Sessions
IN SENATE
February 5, 2021
___________
Introduced by Sens. GIANARIS, BENJAMIN, FELDER, GOUNARDES, HOYLMAN,
JACKSON, SALAZAR -- read twice and ordered printed, and when printed
to be committed to the Committee on Judiciary
AN ACT to amend the judiciary law, in relation to creating the New York
state innocence inquiry commission
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 23 and sections 860 and 861 of the judiciary law,
2 as renumbered by chapter 840 of the laws of 1983, are renumbered article
3 24 and sections 1000 and 1001 and a new article 23 is added to read as
4 follows:
5 ARTICLE 23
6 NEW YORK STATE INNOCENCE INQUIRY COMMISSION
7 Section 900. Definitions.
8 901. New York state innocence inquiry commission.
9 902. Purpose of the commission.
10 903. Powers and duties.
11 904. Procedure.
12 905. Commission staff.
13 906. Reports.
14 § 900. Definitions. As used in this article, the following terms shall
15 have the following meanings:
16 1. "Commission" shall mean the New York state innocence inquiry
17 commission established pursuant to section nine hundred one of this
18 article.
19 2. "Exoneree" shall mean any individual who has been granted a judg-
20 ment in a claim for unjust conviction and imprisonment.
21 3. "Claimant" shall mean an individual convicted or who has pled guil-
22 ty to a crime for which he or she believes themselves to be factually
23 innocent.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06612-03-1
S. 4600 2
1 § 901. New York state innocence inquiry commission. 1. The New York
2 state innocence inquiry commission is hereby established as an independ-
3 ent agency of the state. The commission shall consist of nine members as
4 follows:
5 (a) two members appointed by the chief judge of the court of appeals,
6 of whom:
7 (i) one shall be a current supreme court justice from the first or
8 second judicial department;
9 (ii) one shall be a current supreme court justice from the third or
10 fourth judicial department;
11 (b) two members appointed by the attorney general, of whom:
12 (i) one shall be an attorney with at least five years of prosecutorial
13 experience, regardless of whether they are currently practicing;
14 (ii) one shall be an attorney with at least five years of criminal
15 defense experience, regardless of whether they are currently practicing;
16 (c) one member appointed by the governor, in consultation with the
17 community of wrongful conviction practitioners in the state, who shall
18 be an exoneree;
19 (d) one member appointed by the speaker of the assembly who shall be a
20 member of the public-at-large;
21 (e) one member appointed by the minority leader of the assembly who
22 shall be a member of the public-at-large;
23 (f) one member appointed by the minority leader of the senate, who
24 shall be a professor of law or a professor of a field related to wrong-
25 ful convictions including, but not limited to criminal justice, psychol-
26 ogy, and sociology, or a retired full-time professor of law or a profes-
27 sor of a field related to wrongful convictions including, but not
28 limited to criminal justice, psychology, and sociology, who has taught
29 law school or graduate level courses at an accredited post-graduate
30 college in New York state; and
31 (g) one member appointed by the temporary president of the senate who
32 shall be an expert in the field of forensic science.
33 2. (a) The member appointed by the chief judge of the court of appeals
34 from the first or second judicial department shall serve an initial term
35 of one year and the member appointed by the chief judge of the court of
36 appeals from the third or fourth judicial department shall serve an
37 initial term of two years. Each member appointed by the chief judge of
38 the court of appeals shall only serve so long as they hold office in
39 their respective judicial departments.
40 (b) The member appointed by the attorney general with prosecutorial
41 experience shall serve an initial term of three years and the member
42 appointed by the attorney general with defense experience shall serve an
43 initial term of four years.
44 (c) The members appointed by the governor and speaker of the assembly
45 shall serve an initial term of four years. The member appointed by the
46 minority leader of the assembly shall serve an initial term of three
47 years. The member appointed by the minority leader of the senate shall
48 serve an initial term of two years. The member appointed by the tempo-
49 rary president of the senate shall serve an initial term of one year.
50 (d) Each of the members of the commission appointed thereafter shall
51 serve a term of five years. Every vacancy occurring prior to the expira-
52 tion of a member's term shall be filled for the remainder of such term
53 in the manner provided for the original appointment to such term. Upon
54 the expiration of the term of a member of the commission, such member
55 shall continue to serve until his or her successor is appointed.
S. 4600 3
1 (e) Any member of the commission who has any connection to a case
2 brought in front of the commission shall recuse themselves, and it will
3 be the responsibility of the commission director to select an alternate
4 who shall service in their place for the duration of such case.
5 (f) Each member of the commission shall serve without salary or other
6 compensation, but shall be entitled to receive actual and necessary
7 expenses incurred in the discharge of his or her duties.
8 (g) Appointing authorities shall consider geographical location,
9 gender and racial diversity when making appointments to the commission.
10 (h) Appointing authorities shall, before making appointments of judi-
11 cial or prosecutorial members to the commission, evaluate and conduct
12 all necessary inquiries to determine that an individual being considered
13 for the commission is qualified to participate, and shall evaluate
14 factors which shall include, but not be limited to, character, training,
15 experience, temperament, reputation, and commitment to equal justice
16 under the law.
17 (i) The commission shall elect a chair from amongst its members by a
18 majority vote of the members thereof, and such chair shall be replaced
19 when their term expires. The chair of the commission shall have the
20 authority to remove members from the commission, with cause and a major-
21 ity vote of the members.
22 (j) The commission shall meet at least once every quarter, and at such
23 other times as the chair of the commission shall determine to be neces-
24 sary. All commission meetings shall be public unless otherwise noted.
25 3. There shall be a judicial panel established and made up of three
26 supreme court justices. The chief judge of the court of appeals shall
27 have the power and duty to establish a list of persons who shall be
28 eligible to be appointed as members of the judicial panel. Such list
29 shall hereinafter be referred to in this article as the "judicial nomi-
30 nations pool." Before admission to the judicial nominations pool, the
31 chief judge of the court of appeals shall evaluate and conduct all
32 necessary inquiries to determine that an individual who has been nomi-
33 nated for the judicial panel is qualified to participate, and shall
34 evaluate factors which shall include, but not be limited to, character,
35 training, experience, temperament and commitment to equal justice under
36 the law. The chief judge of the court of appeals shall also consider
37 geographical location, gender, and racial diversity when assembling the
38 judicial nominations pool.
39 § 902. Purpose of the commission. The commission shall review and
40 investigate any criminal or juvenile case involving a potential wrongful
41 conviction and render judgment in each case that comes before the
42 commission as to whether sufficient evidence of innocence exists which
43 would merit judicial review.
44 § 903. Powers and duties. The commission shall have the powers and
45 duties to:
46 1. establish the criteria and screening process to be used when deter-
47 mining which cases the commission shall hear;
48 2. coordinate the investigation of cases the commission accepts for
49 review;
50 3. maintain records for all case investigations;
51 4. prepare written reports outlining commission investigations and
52 recommendations to the trial court which heard the case originally at
53 the completion of each investigation;
54 5. apply for and accept funds that may become available for the
55 commission's work from government grants, private gifts, donations or
56 any other source;
S. 4600 4
1 6. conduct hearings to determine potential innocence;
2 7. administer oaths and affirmations;
3 8. gather evidence in each investigation as necessary;
4 9. compel witness testimony, which includes examination under oath and
5 the power to subpoena witnesses;
6 10. grant immunity as the commission sees necessary;
7 11. request discovery related to a particular case, which includes the
8 production of any books, records, documents or other evidence it may
9 deem relevant or material to a particular investigation; and
10 12. subject physical evidence to forensic and DNA testing.
11 § 904. Procedure. 1. The commission's director shall select which
12 cases the commission will undertake for review. The commission director
13 may delegate this task.
14 (a) The commission shall only consider cases for review in which the
15 claimants claim factual innocence in that they were not involved in the
16 crime or crimes for which they were convicted for or pled guilty to.
17 Cases including, but not limited to, false confessions, admissions, or
18 guilty pleas shall be eligible for review.
19 (b) Claims of innocence may be submitted to the commission by:
20 (i) a claimant;
21 (ii) a claimant's attorney;
22 (iii) an innocence organization, if a claimant is being represented by
23 one;
24 (iv) any court of competent jurisdiction in the state of New York; or
25 (v) any state or local agency.
26 2. (a) Once a case is chosen for review by the commission, the commis-
27 sion shall then begin a formal inquiry.
28 (b) If a co-defendant shall have also been convicted as part of a case
29 being reviewed, notification to such co-defendant that the commission
30 has taken such case under review shall be made within thirty days from
31 the time that the commission agrees to review such case.
32 (c) The commission shall provide a confidential case update to the
33 prosecuting attorney and the claimant and his or her attorney no less
34 than once every six months throughout the review process. Such case
35 update shall include, but not be limited to, a summary of action and any
36 forensic testing performed.
37 (d) All challenges with regard to the commission's authority or the
38 commission's access to evidence shall be heard by one of the current
39 supreme court justices serving on the commission in their judicial
40 capacities. Such justices shall alternate in hearing such challenges.
41 3. (a) The commission shall then conduct an evidentiary hearing to
42 determine if there is sufficient evidence of factual innocence to merit
43 judicial review in front of the judicial panel established under this
44 section. Every member of the commission shall participate in a vote to
45 decide whether such factual innocence to merit judicial review exists.
46 This vote shall occur immediately upon conclusion of the commission's
47 evidentiary hearing.
48 (b)(i) All proceedings of the commission shall be recorded and tran-
49 scribed as part of the official record of the proceedings and all
50 commission member votes shall be included in such record.
51 (ii) The supporting records for the commission's conclusions, includ-
52 ing, but not limited to, all files and materials considered by the
53 commission in making a decision and a full transcript of the hearing
54 before the commission, shall become public when filed with the supreme
55 court in the jurisdiction where the crime in question occurred, regard-
S. 4600 5
1 less of a finding of sufficient or insufficient evidence of factual
2 innocence to warrant a hearing by the judicial panel.
3 (c) (i) Upon the finding of sufficient evidence by the commission of
4 misconduct committed by police, prosecutors or other government offi-
5 cials that were involved in the guilty conviction of an individual, the
6 chair of the commission shall request the attorney general to appoint a
7 special prosecutor to represent the state in lieu of the district attor-
8 ney appointed in the district where the conviction occurred or such
9 district attorney's designee. Such request shall be made within seven
10 days of the determination by the commission that misconduct has occurred
11 in a particular case.
12 (ii) The attorney general shall not appoint as a special prosecutor
13 any attorney who has prosecuted or assisted with the prosecution in the
14 trial of a claimant whose case is before the commission for review, or
15 is a prosecuting attorney in the district where the claimant's case was
16 tried.
17 (iii) Notice of a determination that misconduct has occurred in a
18 particular case shall be provided to any other defendant or co-defendant
19 when the official found to have committed such misconduct was involved
20 in such other defendant or co-defendant's case within thirty days of the
21 determination.
22 (d) Evidence of criminal acts, misconduct or other wrongdoing
23 disclosed through formal inquiry or commission proceedings shall be
24 referred to the appropriate authority including, in cases of prosecuto-
25 rial misconduct, referrals to the commission on prosecutorial conduct.
26 Evidence favorable to a claimant disclosed through formal inquiry of
27 commission proceedings shall be disclosed to such claimant and such
28 claimant's counsel, where applicable.
29 (e) The commission's vote to determine if sufficient evidence of
30 factual innocence to merit judicial review exists may be bypassed if the
31 acting prosecutor and claimant or their counsel agree that enough
32 evidence exists to go directly in front of the judicial panel.
33 4. (a) If the commission determines by a majority vote that a case
34 merits review, it shall be sent before the judicial panel established
35 pursuant to subdivision three of section nine hundred one of this arti-
36 cle for further consideration.
37 (b) (i) The chair of the commission shall immediately request that the
38 chief judge of the court of appeals commission members of the judicial
39 panel to convene a special session of the court of original jurisdiction
40 in the case involved, to hear evidence relevant to the commission's
41 recommendation that such case merits review.
42 (ii) The chief judge of the court of appeals shall appoint three
43 supreme court justices who shall comprise such judicial panel within ten
44 days after an opinion is rendered by the commission that sufficient
45 evidence of factual innocence to merit judicial review exists.
46 (iii) The justice that has served the longest in the capacity as a
47 supreme court justice shall preside over such special session.
48 (iv) Once the judicial panel has been established, the presiding
49 justice shall enter an order setting the case for hearing at a special
50 session of the supreme court for which the judicial panel is commis-
51 sioned and shall require the prosecuting attorney to file a response to
52 the commission's opinion within thirty days of the date of such order.
53 Such response by the prosecutor, at the time of the original filing or
54 through amendment at any time before or during proceedings, may include
55 joining the defense in a motion to dismiss the charges with prejudice on
S. 4600 6
1 the basis of innocence. The special session hearing shall commence no
2 later than forty-five days from the order for such hearing.
3 5. (a) The judicial panel shall rule as to whether a claimant whose
4 case is being reviewed has proved by a preponderance of the evidence
5 that such claimant is innocent of the charges brought against them. If
6 there is a majority vote by the judicial panel that the standard of a
7 preponderance of the evidence has been met, the panel shall enter a
8 ruling that any or all of the charges shall be dismissed. If a majority
9 vote has not been met, the panel shall deny relief and any dissenting
10 opinions shall be published. Any ruling by the panel shall be published
11 within seven days of the hearing's conclusion.
12 (b) (i) The judicial panel shall conduct an evidentiary hearing, at
13 which time the court, prosecution and defense may compel the testimony
14 of witnesses, including the claimant. All evidence relevant to the case,
15 even if previously considered by a jury or judge in a prior proceeding
16 may be presented during such hearing, including, but not limited to,
17 prior incidents of misconduct by an official who was or is involved in
18 such case. A claimant whose case is being reviewed shall have the right
19 to be present at the evidentiary hearing and to be represented by coun-
20 sel at such hearing. If a claimant chooses to waive their right to be
21 present at such hearing, such waiver shall be made in writing to the
22 judicial panel.
23 (ii) Legal representation and services shall be provided to indigent
24 individuals if applicable, and the request for such shall be entered by
25 the presiding justice.
26 (c) If a claimant has been determined to be innocent and an order to
27 dismiss all or any charges against them has been ordered, such claimant
28 shall be eligible for compensation pursuant to section eight-b of the
29 court of claims act.
30 (d) The decisions of the commission and the judicial panel shall be
31 final and shall not be subject to further review by appeal, certif-
32 ication, writ, motion or otherwise.
33 (e) A claim of factual innocence presented to the commission shall not
34 adversely affect a claimant's rights to other post-conviction relief.
35 § 905. Commission staff. 1. The commission shall employ a director who
36 shall be a licensed attorney with courtroom experience, specifically
37 criminal experience, in the state of New York.
38 2. The director shall employ individuals and volunteers as he or she
39 deems necessary to create a staff to assist with the functions and oper-
40 ations of the commission.
41 § 906. Reports. The commission shall report annually by February first
42 of each year on the cases it has heard and any rulings it has made in
43 relation to such cases to the appointing authorities described in
44 section nine hundred one of this article. The report may include, but
45 not be limited to, recommendations of any needed legislative changes
46 related to the duties or procedures of the commission and recommenda-
47 tions of funding needed by the commission in order to meet their duties.
48 § 2. This act shall take effect on the ninetieth day after it shall
49 have become a law, provided that the officials who are empowered by this
50 act to appoint members of the New York state innocence inquiry commis-
51 sion are authorized and directed to make such appointments on or before
52 such effective date pursuant to section 901 of the judiciary law, as
53 added by section one of this act.
