STATE OF NEW YORK
________________________________________________________________________
7982
IN SENATE
March 15, 2018
___________
Introduced by Sen. HAMILTON -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
AN ACT to amend the court of claims act and the tax law, in relation to
claims for unjust conviction and imprisonment
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "wrongfully
2 convicted recovery act".
3 § 2. Section 8-b of the court of claims act, as added by chapter 1009
4 of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws
5 of 2007, is amended to read as follows:
6 § 8-b. Claims for unjust conviction and imprisonment. 1. The legisla-
7 ture finds and declares that innocent persons who have been wrongly
8 convicted of crimes and subsequently imprisoned have been frustrated in
9 seeking legal redress due to a variety of substantive and technical
10 obstacles in the law and that such persons should have an available
11 avenue of redress over and above the existing tort remedies to seek
12 compensation for damages. The legislature intends by enactment of the
13 provisions of this section that those innocent persons who can demon-
14 strate by clear and convincing evidence that they were unjustly
15 convicted and imprisoned be able to recover damages against the state.
16 In light of the substantial burden of proof that must be carried by such
17 persons, it is the intent of the legislature that the court, in exercis-
18 ing its discretion as permitted by law regarding the weight and admissi-
19 bility of evidence submitted pursuant to this section, shall, in the
20 interest of justice, give due consideration to difficulties of proof
21 caused by the passage of time, the death or unavailability of witnesses,
22 the destruction of evidence or other factors not caused by such persons
23 or those acting on their behalf.
24 2. Any person convicted and subsequently imprisoned for one or more
25 felonies or misdemeanors against the state which he or she did not
26 commit may, under the conditions hereinafter provided, present a claim
27 for damages against the state. In scheduling court appearances and
28 filing deadlines, the court shall give docket priority at each stage of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08758-04-8
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1 the proceeding to such claims for damages under this subdivision where
2 the claimant asserts proof of innocence through DNA evidence. Any
3 adjournments granted in the course of such a proceeding should be for as
4 short a time as is practicable.
5 3. In order to present the claim for unjust conviction and imprison-
6 ment, claimant must establish by documentary evidence that:
7 (a) he or she has been convicted of one or more felonies or misdemea-
8 nors against the state and subsequently sentenced to a term of imprison-
9 ment, and has served all or any part of the sentence; and
10 (b) (i) he or she has been pardoned upon the ground of innocence of
11 the crime or crimes for which he or she was sentenced and which are the
12 grounds for the complaint; or (ii) his or her judgment of conviction was
13 reversed or vacated, and the accusatory instrument dismissed or, if a
14 new trial was ordered, either he or she was found not guilty at the new
15 trial or he or she was not retried and the accusatory instrument
16 dismissed; provided that the [judgement] judgment of conviction was
17 reversed or vacated, and the accusatory instrument was dismissed, on any
18 of the following grounds: (A) paragraph (a), (b), (c), (e) [or], (g) or
19 (g-1) of subdivision one of section 440.10 of the criminal procedure
20 law; or (B) subdivision one (where based upon grounds set forth in [item
21 (A) hereof] clause (A) of this subparagraph), two, three (where the
22 count dismissed was the sole basis for the imprisonment complained of)
23 or five of section 470.20 of the criminal procedure law; or (C) compara-
24 ble provisions of the former code of criminal procedure or subsequent
25 law; or (D) the statute, or application thereof, on which the accusatory
26 instrument was based violated the constitution of the United States or
27 the state of New York; and
28 (c) his or her claim is not time-barred by the provisions of subdivi-
29 sion seven of this section.
30 4. The claim shall state facts in sufficient detail to permit the
31 court to find that claimant is likely to succeed at trial in proving
32 that (a) he or she did not commit any of the acts charged in the accusa-
33 tory instrument or his or her acts or omissions charged in the accusato-
34 ry instrument did not constitute a felony or misdemeanor against the
35 state, and (b) he or she did not by his or her own conduct cause or
36 bring about his or her conviction. The claim shall be verified by the
37 claimant. If the court finds after reading the claim that claimant is
38 not likely to succeed at trial, it shall dismiss the claim, either on
39 its own motion or on the motion of the state.
40 5. In order to obtain a judgment in his or her favor, claimant must
41 prove by clear and convincing evidence that:
42 (a) he or she has been convicted of one or more felonies or misdemea-
43 nors against the state and subsequently sentenced to a term of imprison-
44 ment, and has served all or any part of the sentence; and
45 (b) (i) he or she has been pardoned upon the ground of innocence of
46 the crime or crimes for which he or she was sentenced and which are the
47 grounds for the complaint; or (ii) his or her judgment of conviction was
48 reversed or vacated, and the accusatory instrument dismissed or, if a
49 new trial was ordered, either he or she was found not guilty at the new
50 trial or he or she was not retried and the accusatory instrument
51 dismissed; provided that the [judgement] judgment of conviction was
52 reversed or vacated, and the accusatory instrument was dismissed, on any
53 of the following grounds: (A) paragraph (a), (b), (c), (e) [or], (g) or
54 (g-1) of subdivision one of section 440.10 of the criminal procedure
55 law; or (B) subdivision one (where based upon grounds set forth in [item
56 (A) hereof] clause (A) of this subparagraph), two, three (where the
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1 count dismissed was the sole basis for the imprisonment complained of)
2 or five of section 470.20 of the criminal procedure law; or (C) compara-
3 ble provisions of the former code of criminal procedure or subsequent
4 law; or (D) the statute, or application thereof, on which the accusatory
5 instrument was based violated the constitution of the United States or
6 the state of New York; and
7 (c) he or she did not commit any of the acts he or she was convicted
8 of or his or her acts or omissions charged in the accusatory instrument
9 or [his acts or omissions charged in the accusatory instrument] that any
10 such acts did not constitute a felony or misdemeanor against the state;
11 [and]
12 (d) he or she did not by his or her own conduct cause or bring about
13 his or her conviction; and
14 (e) he or she was not under sentence for a separate crime during the
15 period of time for which compensation is sought.
16 6. If the court finds that the claimant is entitled to a judgment, it
17 shall award damages in [such] the sum of [money] not less than one
18 million dollars for each year of incarceration and such additional
19 damages as the court determines will fairly and reasonably compensate
20 him or her. Such additional damages may include, but need not be limit-
21 ed to the following:
22 (a) compensation for lost wages;
23 (b) reimbursement for legal fees expended for the defense of the
24 convicted person at trial and upon appeal;
25 (c) medical expenses, including therapy;
26 (d) enrollment in the health benefit plan established pursuant to
27 section one hundred sixty-one of the civil service law. The full cost of
28 premium or subscription charges for such coverage shall be paid by the
29 state;
30 (e) educational assistance including:
31 (i) free tuition for the claimant and for any of the claimant's chil-
32 dren for attending a state university or college;
33 (ii) free tuition or reimbursement of tuition for the claimant and for
34 any of the claimant's children for attending a CUNY university or
35 college; and
36 (iii) free tuition at a state funded vocational program and/or job
37 skills program for the claimant and for any of the claimant's children;
38 (f) reimbursement of any child-support arrears that accrued and were
39 paid, including reimbursement to the custodial parent of the amount he
40 or she was receiving prior to the incarceration if it was modified by
41 virtue of the claimant's incarceration;
42 (g) treatment as veterans for purposes of receiving the following
43 benefits:
44 (i) access to the Homes for Veterans Program, which offers fixed-rate
45 mortgages with interest rates one-half percent below the interest rates
46 charged on SONYMA mortgages, with closing cost assistance; and
47 (ii) eligibility for appointment to non-competitive state employment
48 positions pursuant to sections fifty-five-b and fifty-five-c of the
49 civil service law. Those employees hired under this subparagraph shall
50 be afforded the same opportunity to take promotional examinations as
51 provided to employees in the competitive class.
52 7. Any person claiming compensation under this section based on a
53 pardon that was granted before the effective date of this section or the
54 dismissal of an accusatory instrument that occurred before the effective
55 date of the chapter of the laws of two thousand eighteen that amended
56 this section shall file his or her claim within two years after [the]
S. 7982 4
1 such effective date [of this section]. Any person claiming compensation
2 under this section based on a pardon that was granted on or after the
3 effective date of this section or the dismissal of an accusatory instru-
4 ment that occurred on or after the effective date of the chapter of the
5 laws of two thousand eighteen that amended this section shall file his
6 or her claim within [two] three years after the pardon or dismissal.
7 8. The claimant shall be entitled to reasonable attorney's fees
8 incurred in the process of vacating or reversing his or her criminal
9 conviction. The claimant may petition the court of claims in seeking
10 reasonable attorney's fees against the state pursuant to this section.
11 Any award of attorney's fees shall be reimbursable by the state.
12 9. Any award of damages pursuant to the provisions of this section
13 shall be exempt from income tax to the extent provided in section thir-
14 teen-a of the tax law.
15 § 3. The tax law is amended by adding a new section 13-a to read as
16 follows:
17 § 13-a. Exemption from taxation for persons wrongfully convicted and
18 imprisoned. Notwithstanding any provision of law to the contrary, damage
19 award amounts received, including accumulated interest, by persons
20 wrongfully convicted and imprisoned as provided in section eight-b of
21 the court of claims act, whether or not includable in income for federal
22 income tax purposes, shall be exempt from all state and local taxes
23 imposed on or measured by income; provided however, that this exemption
24 shall not apply to amounts received from assets acquired with such
25 assets or with the proceeds from the sale of such assets.
26 § 4. This act shall take effect immediately.
