Bill Text: NY A00098 | 2021-2022 | General Assembly | Amended

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 50-0)

Status: (Engrossed - Dead) 2022-05-31 - REFERRED TO CODES [A00098 Detail]

Download: New_York-2021-A00098-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          98--A

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                       (Prefiled)

                                     January 6, 2021
                                       ___________

        Introduced by M. of A. QUART, KIM, TAYLOR, FORREST, BURGOS, REYES, HEVE-
          SI,  FAHY,  O'DONNELL,  MITAYNES,  ANDERSON,  MAMDANI, JACKSON, CLARK,
          SIMON, GONZALEZ-ROJAS, PERRY, SEAWRIGHT, CARROLL, GALLAGHER,  DARLING,
          BURDICK,  CRUZ,  EPSTEIN,  GOTTFRIED,  HUNTER,  MEEKS, WEPRIN, KELLES,
          L. ROSENTHAL, OTIS, FERNANDEZ, COOK, AUBRY, McDONALD, NIOU,  DINOWITZ,
          SEPTIMO,  GIBBS,  DICKENS,  GLICK, DAVILA -- read once and referred to
          the Committee on Codes -- 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  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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01711-02-2
        A. 98--A                            2

     1  where sufficient reason exists to allow retroactive application  of  the
     2  changed legal standard.
     3    2. If the court grants a motion under this section, it must vacate the
     4  judgment  on  the  merits,  dismiss  the accusatory instrument, seal the
     5  judgment, and may take such additional action as is appropriate  in  the
     6  circumstances.
     7    §  2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
     8  subdivision 1 as added by chapter 19 of the laws of 2012, paragraph  (h)
     9  of  subdivision  1,  paragraph (a) of subdivision 3 and subdivision 4 as
    10  amended and subdivisions 7 and 8 as renumbered by  chapter  332  of  the
    11  laws  of  2010,  paragraph  (i)  of  subdivision  1 and subdivision 6 as
    12  amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
    13  1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
    14  vision 1 as amended by chapter 92 of the laws of  2021,  paragraphs  (b)
    15  and  (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
    16  and subdivision 9 as added by section 4 of part OO of chapter 55 of  the
    17  laws of 2019, is amended to read as follows:
    18  § 440.10 Motion to vacate judgment.
    19    1.  At  any time after the entry of a judgment obtained at trial or by
    20  plea, the court in which it was entered may, upon motion of the [defend-
    21  ant] applicant, vacate such judgment upon the ground that:
    22    (a) The court did not have jurisdiction of the action or of the person
    23  of the [defendant] applicant; or
    24    (b) The judgment was procured by duress, misrepresentation or fraud on
    25  the part of the court or a prosecutor or  a  person  acting  for  or  in
    26  behalf of a court or a prosecutor; or
    27    (c)  [Material  evidence] Evidence adduced at a trial resulting in the
    28  judgment or that was relied upon by any party as  a  basis  for  a  plea
    29  agreement  was false [and was, prior to the entry of the judgment, known
    30  by the prosecutor or by the court to be false]; or
    31    (d) [Material evidence] Evidence adduced by  the  people  at  a  trial
    32  resulting  in  the  judgment  or  that was relied upon by any party as a
    33  basis for a plea agreement was procured in  violation  of  the  [defend-
    34  ant's] applicant's rights under the constitution of this state or of the
    35  United States; or
    36    (e)  During the proceedings resulting in the judgment, the [defendant]
    37  applicant, by reason of mental  disease  or  defect,  was  incapable  of
    38  understanding or participating in such proceedings; or
    39    (f)  Improper  [and  prejudicial]  conduct not appearing in the record
    40  occurred during a trial resulting in the judgment which conduct,  if  it
    41  had  appeared  in  the  record,  would  have  [required] made possible a
    42  reversal of the judgment upon an appeal therefrom; or
    43    (g) New evidence has been discovered [since the entry  of  a  judgment
    44  based  upon  a  verdict of guilty after trial, which could not have been
    45  produced by the defendant at the trial even with due  diligence  on  his
    46  part  and  which]  or  become  available that, when viewed alone or with
    47  other evidence, is of such character as to create a reasonable probabil-
    48  ity that had such evidence been received  at  the  trial  or  discovered
    49  prior  to  trial  or  plea agreement that the verdict or plea would have
    50  been more favorable to the [defendant; provided that a motion based upon
    51  such ground must be made with due diligence after the discovery of  such
    52  alleged  new  evidence]  applicant. Types of new evidence shall include,
    53  but not be limited to newly available forensic evidence or evidence that
    54  has either been repudiated by the expert  who  originally  provided  the
    55  opinion  at  a  hearing  or  trial  or that has been undermined by later
    56  scientific research or technological advances; or
        A. 98--A                            3

     1    (g-1) [Forensic DNA]  In  cases  involving  the  forensic  testing  of
     2  evidence  performed since the entry of a judgment, [(1) in the case of a
     3  defendant convicted after a guilty plea, the court has  determined  that
     4  the  defendant  has  demonstrated  a  substantial  probability  that the
     5  defendant  was  actually  innocent of the offense of which he or she was
     6  convicted, or (2) in the case of a defendant convicted after  a  trial,]
     7  the court has determined that there exists a reasonable probability that
     8  the verdict or plea offer would have been more favorable to the [defend-
     9  ant] applicant, or the applicant would have rejected the plea offer.
    10    (h)  The judgment was obtained in violation of a right of the [defend-
    11  ant] applicant under the constitution of this state  or  of  the  United
    12  States,  including, but not limited to, a judgment entered, whether upon
    13  trial or guilty plea, against an applicant who is actually innocent.  An
    14  applicant is actually innocent where the applicant proves by  a  prepon-
    15  derance of the evidence that no reasonable jury of the applicant's peers
    16  would have found the applicant guilty beyond a reasonable doubt; or
    17    (i)  The  judgment is a conviction where the [defendant's] applicant's
    18  participation in the offense was a result of having been a victim of sex
    19  trafficking under section 230.34 of the penal law, sex trafficking of  a
    20  child  under  section 230.34-a of the penal law, labor trafficking under
    21  section 135.35 of the penal  law,  aggravated  labor  trafficking  under
    22  section  135.37  of the penal law, compelling prostitution under section
    23  230.33 of the penal law, or trafficking in persons under the Trafficking
    24  Victims Protection Act (United  States  Code,  title  22,  chapter  78);
    25  provided that
    26    (i)  official documentation of the [defendant's] applicant's status as
    27  a victim of sex trafficking, labor trafficking, aggravated  labor  traf-
    28  ficking,  compelling prostitution, or trafficking in persons at the time
    29  of the offense from a federal, state or local  government  agency  shall
    30  create a presumption that the [defendant's] applicant's participation in
    31  the  offense  was  a  result of having been a victim of sex trafficking,
    32  labor trafficking, aggravated labor trafficking, compelling prostitution
    33  or trafficking in persons, but shall not  be  required  for  granting  a
    34  motion under this paragraph;
    35    (ii) a motion under this paragraph, and all pertinent papers and docu-
    36  ments, shall be confidential and may not be made available to any person
    37  or  public  or  private [entity] agency except [where] when specifically
    38  authorized by the court; and
    39    (iii) when a motion is filed under this paragraph, the court may, upon
    40  the consent of the petitioner and all of the  involved  state  [and]  or
    41  local  prosecutorial agencies [that prosecuted each matter], consolidate
    42  into one proceeding a motion to vacate judgments imposed by distinct  or
    43  multiple criminal courts; or
    44    (j)  The  judgment is a conviction for [a class A or unclassified] any
    45  misdemeanor entered prior to the effective date of this  paragraph  [and
    46  satisfies  the  ground  prescribed in paragraph (h) of this subdivision]
    47  that resulted in ongoing collateral consequences, including potential or
    48  actual immigration consequences.  There shall be a  rebuttable  presump-
    49  tion  that  a  conviction  by  plea  to such an offense was not knowing,
    50  voluntary and intelligent, [based on  ongoing  collateral  consequences,
    51  including  potential  or actual immigration consequences, and there] and
    52  thus rendered the plea constitutionally defective pursuant to  paragraph
    53  (h) of this subdivision.  There shall be a rebuttable presumption that a
    54  conviction  by  verdict to such an offense constitutes cruel and unusual
    55  punishment under section five of article one of the  state  constitution
        A. 98--A                            4

     1  based  on  such  consequences  and  thus  rendered the verdict constitu-
     2  tionally defective pursuant to paragraph (h) of this subdivision; or
     3    (j-1)  The  judgment is a conviction for a class D or E felony entered
     4  prior to the effective date of this paragraph  for  which  the  sentence
     5  imposed  was  one year, and such sentence resulted in ongoing collateral
     6  consequences, including potential or  actual  immigration  consequences.
     7  There  shall  be  a  rebuttable presumption that a conviction by plea to
     8  such an offense was not knowing, voluntary  and  intelligent,  and  thus
     9  rendered  the  plea constitutionally defective pursuant to paragraph (h)
    10  of this subdivision. There shall be  a  rebuttable  presumption  that  a
    11  conviction  by  verdict to such an offense constitutes cruel and unusual
    12  punishment under section five of article one of the  state  constitution
    13  based  on  such  consequences,  and  thus rendered the verdict constitu-
    14  tionally defective pursuant to paragraph (h) of this subdivision; or
    15    (k) The judgment occurred prior to the effective date of the  laws  of
    16  two  thousand [twenty-one] twenty-two that amended this paragraph and is
    17  a conviction for an offense as defined in  [subparagraphs]  subparagraph
    18  (i),  (ii),  (iii)  or  (iv)  of  paragraph  (k) of subdivision three of
    19  section 160.50 of this part, or a misdemeanor under the  former  article
    20  two  hundred  twenty-one of the penal law, in which case the court shall
    21  presume that a conviction by plea for the  aforementioned  offenses  was
    22  not  knowing,  voluntary  and  intelligent  if  it has severe or ongoing
    23  consequences, including but not limited to  potential  or  actual  immi-
    24  gration consequences, and shall presume that a conviction by verdict for
    25  the  aforementioned  offenses  constitutes  cruel and unusual punishment
    26  under section five of article one of the state  constitution,  based  on
    27  those consequences. The people may rebut these presumptions[.]; or
    28    (l)  Any  offense in the state of New York that an intermediate appel-
    29  late court, court of appeals, or United States federal court has  deemed
    30  in  violation of the constitution of this state or of the United States,
    31  or any other right under state or federal law.
    32    2. Notwithstanding the provisions of subdivision one, the court [must]
    33  may deny a motion to vacate a judgment when:
    34    (a) The ground or issue raised upon the motion was  previously  deter-
    35  mined  on  the merits upon an appeal from the judgment, unless since the
    36  time of such appellate determination  there  has  been  a  retroactively
    37  effective  change  in the law controlling such issue. However, if all of
    38  the evidence currently before the court was not duly  considered  previ-
    39  ously  by the court, the court shall grant the motion or order the hear-
    40  ing; or
    41    (b) The judgment is, at the time of the motion, appealable or  pending
    42  on appeal, and sufficient facts appear on the record with respect to the
    43  ground or issue raised upon the motion to permit adequate review thereof
    44  upon such an appeal unless the issue raised upon such motion is ineffec-
    45  tive  assistance  of counsel. This paragraph shall not apply to a motion
    46  under paragraph (i), (j), (k) or (l) of subdivision one of this section;
    47  or
    48    (c) [Although sufficient facts appear on the record of the proceedings
    49  underlying the judgment to have permitted, upon appeal from  such  judg-
    50  ment,  adequate review of the ground or issue raised upon the motion, no
    51  such appellate review or determination occurred owing to the defendant's
    52  unjustifiable failure to take or perfect an appeal during the prescribed
    53  period or to his or her unjustifiable failure to raise  such  ground  or
    54  issue  upon  an appeal actually perfected by him or her unless the issue
    55  raised upon such motion is ineffective assistance of counsel; or
        A. 98--A                            5

     1    (d)] The ground or issue raised relates solely to the validity of  the
     2  sentence  and  not to the validity of the conviction.  In such case, the
     3  court shall deem the motion to have been made pursuant to section 440.20
     4  of this article.
     5    [3.  Notwithstanding  the provisions of subdivision one, the court may
     6  deny a motion to vacate a judgment when:
     7    (a) Although facts in support of the ground or issue raised  upon  the
     8  motion  could with due diligence by the defendant have readily been made
     9  to appear on the record in a manner providing adequate basis for  review
    10  of  such ground or issue upon an appeal from the judgment, the defendant
    11  unjustifiably failed to adduce such matter prior  to  sentence  and  the
    12  ground or issue in question was not subsequently determined upon appeal.
    13  This  paragraph does not apply to a motion based upon deprivation of the
    14  right to counsel at the trial or upon failure  of  the  trial  court  to
    15  advise  the  defendant of such right, or to a motion under paragraph (i)
    16  of subdivision one of this section; or
    17    (b) The ground or issue raised upon the motion was  previously  deter-
    18  mined on the merits upon a prior motion or proceeding in a court of this
    19  state,  other  than  an  appeal  from  the judgment, or upon a motion or
    20  proceeding in a federal court; unless since the time  of  such  determi-
    21  nation  there  has  been  a  retroactively  effective  change in the law
    22  controlling such issue; or
    23    (c) Upon a previous motion made pursuant to this section, the  defend-
    24  ant was in a position adequately to raise the ground or issue underlying
    25  the present motion but did not do so.]
    26    (d)  Although  the  court may deny the motion under any of the circum-
    27  stances specified in this subdivision, in the interest  of  justice  and
    28  for  good cause shown it may in its discretion grant the motion if it is
    29  otherwise meritorious and vacate the judgment.
    30    [4.] 3. If the court grants the motion, it must, except as provided in
    31  subdivision [five] four or [six] five of this section, vacate the  judg-
    32  ment, and must either:
    33    (a) dismiss and seal the accusatory instrument, or
    34    (b) order a new trial, or
    35    (c) take such other action as is appropriate in the circumstances.
    36    [5.]  4.  Upon  granting  the motion upon the ground, as prescribed in
    37  paragraph (g) of subdivision one, that newly discovered evidence creates
    38  a probability that had such evidence been  received  at  the  trial  the
    39  verdict  would  have been more favorable to the [defendant] applicant in
    40  that the conviction would have been for a lesser offense  than  the  one
    41  contained in the verdict, the court may either:
    42    (a) Vacate the judgment and order a new trial; or
    43    (b) With the consent of the people, modify the judgment by reducing it
    44  to  one  of  conviction for such lesser offense. In such case, the court
    45  must re-sentence the [defendant] applicant accordingly.
    46    [6.] 5. If the court grants a motion under [paragraph  (i)  or]  para-
    47  graph  [(k)]  (h),  (i),  (j),  (k)  or  (l)  of subdivision one of this
    48  section, it must vacate the judgment [and] on the  merits,  dismiss  the
    49  accusatory  instrument,  seal the judgment, and may take such additional
    50  action as is appropriate in the circumstances. [In the case of a  motion
    51  granted  under  paragraph  (i)  of  subdivision one of this section, the
    52  court must vacate the judgment on the  merits  because  the  defendant's
    53  participation  in  the  offense  was a result of having been a victim of
    54  trafficking.
    55    7.] 6. Upon a new trial resulting from an order  vacating  a  judgment
    56  pursuant  to  this  section, the indictment is deemed to contain all the
        A. 98--A                            6

     1  counts and to charge all the offenses which it contained and charged  at
     2  the  time  the  previous  trial was commenced, regardless of whether any
     3  count was dismissed by the court in the course of such trial, except (a)
     4  those upon or of which the [defendant] applicant was acquitted or deemed
     5  to  have  been  acquitted, and (b) those dismissed by the order vacating
     6  the judgment, and (c) those previously dismissed by an  appellate  court
     7  upon  an appeal from the judgment, or by any court upon a previous post-
     8  judgment motion.
     9    [8.] 7. Upon an order which vacates a judgment based upon  a  plea  of
    10  guilty to an accusatory instrument or a part thereof, but which does not
    11  dismiss the entire accusatory instrument, the criminal action is, in the
    12  absence  of  an  express  direction  to  the  contrary,  restored to its
    13  [prepleading] pre-pleading  status  and  the  accusatory  instrument  is
    14  deemed to contain all the counts and to charge all the offenses which it
    15  contained and charged at the time of the entry of the plea, except those
    16  subsequently  dismissed  under circumstances specified in paragraphs (b)
    17  and (c) of subdivision six.  Where the plea of guilty  was  entered  and
    18  accepted,  pursuant  to  subdivision  three  of section 220.30, upon the
    19  condition that it constituted a complete disposition  not  only  of  the
    20  accusatory instrument underlying the judgment vacated but also of one or
    21  more other accusatory instruments against the [defendant] applicant then
    22  pending  in  the  same  court, the order of vacation completely restores
    23  such other accusatory instruments; and such is the case even though such
    24  order dismisses the main accusatory instrument underlying the judgment.
    25    [9.] 8. Upon granting of a motion pursuant to paragraph (j) of  subdi-
    26  vision one of this section, the court [may] must vacate the judgment and
    27  may,  in  addition to the remedies in subdivision three of this section,
    28  either:
    29    (a) With the consent of the people, [vacate the  judgment  or]  modify
    30  the judgment by reducing it to one of conviction for a lesser offense or
    31  allow  the  applicant  to  replead  to  a disposition agreed upon by the
    32  parties; or
    33    (b) [Vacate the judgment and order a new trial wherein  the  defendant
    34  enters]  Permit  the  applicant  to enter a plea to the same offense [in
    35  order to permit the court to] and resentence the  [defendant]  applicant
    36  in  accordance  with  the  amendatory provisions of subdivision one-a of
    37  section 70.15 of the penal law.
    38    9. Upon granting of a motion pursuant to paragraph j-1 of  subdivision
    39  one  of  this section, the court must vacate the judgment and permit the
    40  applicant to enter a plea to the same offense in  order  to  permit  the
    41  court to resentence the applicant to three hundred sixty-four days.
    42    10.  Notwithstanding  any  other  provision of this section, the court
    43  must order a hearing and address the merits of any claim for relief when
    44  the applicant asserts that, in light of all  available  evidence,  there
    45  exists  a  colorable claim that he or she is actually innocent. When the
    46  applicant raises an actual innocence claim based on, in whole  or  part,
    47  new  evidence  of actual innocence, the court may not summarily deny the
    48  motion on the ground that the  applicant  previously  moved  for  relief
    49  under this article.
    50    §  3.  Section  440.20 of the criminal procedure law, subdivision 1 as
    51  amended by chapter 1 of the laws of 1995, is amended to read as follows:
    52  § 440.20 Motion to set aside sentence; by [defendant] applicant.
    53    1. At any time after the entry of a judgment, the court in  which  the
    54  judgment  was entered may, upon motion of the [defendant] applicant, set
    55  aside the sentence upon the ground that it was  unauthorized,  illegally
    56  imposed,  exceeded  the  maximum  allowed by law, obtained or imposed in
        A. 98--A                            7

     1  violation of the defendant's constitutional  rights,  or  was  otherwise
     2  invalid  as  a matter of law.  Where the judgment includes a sentence of
     3  death, the court may also set aside the sentence upon any of the grounds
     4  set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
     5  section 440.10 as applied to  a  separate  sentencing  proceeding  under
     6  section  400.27,  provided,  however,  that  to the extent the ground or
     7  grounds asserted include one or more  of  the  aforesaid  paragraphs  of
     8  subdivision  one  of section 440.10, the court must also apply [subdivi-
     9  sions] subdivision two [and three] of section 440.10, other  than  para-
    10  graph  [(d)]  (c) of [subdivision two of] such [section] subdivision, in
    11  determining the motion. In the event the court enters an order  granting
    12  a  motion to set aside a sentence of death under this section, the court
    13  must either direct  a  new  sentencing  proceeding  in  accordance  with
    14  section  400.27  or,  to  the extent that the defendant cannot be resen-
    15  tenced to death consistent with the laws of this state or the  constitu-
    16  tion  of this state or of the United States, resentence the defendant to
    17  life imprisonment without parole or to a sentence  of  imprisonment  for
    18  the class A-I felony of murder in the first degree other than a sentence
    19  of  life  imprisonment without parole. Upon granting the motion upon any
    20  of the grounds set forth in the aforesaid paragraphs of subdivision  one
    21  of  section 440.10 and setting aside the sentence, the court must afford
    22  the people a reasonable period of time, which shall not be less than ten
    23  days, to determine whether to take an  appeal  from  the  order  setting
    24  aside the sentence of death. The taking of an appeal by the people stays
    25  the  effectiveness  of  that portion of the court's order that directs a
    26  new sentencing proceeding.
    27    2.   Notwithstanding the provisions  of  subdivision  one,  the  court
    28  [must]  may deny such a motion when the ground or issue raised thereupon
    29  was previously determined on the merits upon an appeal from the judgment
    30  or sentence, unless since the time of such appellate determination there
    31  has been a retroactively effective change in the  law  controlling  such
    32  issue.    However, if all of the evidence currently before the court was
    33  not duly considered previously by the court, the court  shall  not  deny
    34  the  motion  to  vacate  and  instead shall order a hearing or grant the
    35  motion. Even if the court has already considered  all  of  the  evidence
    36  currently before the court, the court in the interest of justice and for
    37  good cause shown may grant the motion if it is otherwise meritorious.
    38    3.   [Notwithstanding the provisions of subdivision one, the court may
    39  deny such a motion when the ground or issue raised thereupon was  previ-
    40  ously  determined  on  the merits upon a prior motion or proceeding in a
    41  court of this state, other than an appeal from the judgment, or  upon  a
    42  prior  motion or proceeding in a federal court, unless since the time of
    43  such determination there has been a retroactively  effective  change  in
    44  the  law  controlling such issue.   Despite such determination, however,
    45  the court in the interest of justice and for good cause  shown,  may  in
    46  its discretion grant the motion if it is otherwise meritorious.
    47    4.]    An order setting aside a sentence pursuant to this section does
    48  not affect the validity or status  of  the  underlying  conviction,  and
    49  after  entering  such an order the court must resentence the [defendant]
    50  applicant in accordance with the law.
    51    § 4. Section 440.30 of the criminal procedure law, subdivisions 1  and
    52  1-a  as  amended by chapter 19 of the laws of 2012 and the opening para-
    53  graph of paragraph (b) of subdivision 1 as amended by section 10 of part
    54  LLL of chapter 59 of the laws of 2019, is amended to read as follows:
    55  § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
        A. 98--A                            8

     1    1. (a) [A] An application for a motion to vacate a  judgment  pursuant
     2  to  section 440.10 or 440.11 of this article and a motion to set aside a
     3  sentence pursuant to section 440.20 of this  article  must  be  made  in
     4  writing  by  the  applicant or their counsel to the judge or justice who
     5  imposed  the original sentence and upon reasonable notice to the people.
     6  [Upon the motion, a defendant] If, at the time of such person's  request
     7  to  apply  for  relief pursuant to this article, the original sentencing
     8  judge or justice no longer works in the  court  in  which  the  original
     9  sentence  was  imposed,  then  the request shall be randomly assigned to
    10  another judge or justice of the court in which the original sentence was
    11  imposed.
    12    (b) Upon the submission of an application for relief under this  arti-
    13  cle,  unless  the  applicant  is represented by counsel or affirmatively
    14  states an intention to represent themselves  pro  se,  the  court  shall
    15  assign  defense counsel if the applicant is indigent or otherwise quali-
    16  fies for free representation in accordance with the provisions of subdi-
    17  vision one of section seven hundred seventeen and  subdivision  four  of
    18  section  seven  hundred  twenty-two  of  the  county law and the related
    19  provisions of article eighteen-A of such law.
    20    (c) Upon making a determination as to assignment of counsel, the court
    21  shall also promptly order the disclosure  of  discovery  to  the  person
    22  applying  for  relief and his or her counsel. The order of disclosure of
    23  discovery shall include that:
    24    (i) The people produce all items and information that  relate  to  the
    25  subject  matter  of  the  case  and  are  in the possession, custody and
    26  control of the prosecution or persons under their direction  or  control
    27  and  make  available  for  inspection  any  physical evidence secured in
    28  connection with the  investigation  or  prosecution  of  the  applicant,
    29  including  all  evidence  that would be discoverable pursuant to section
    30  245.20 of this part; and
    31    (ii) The applicant's prior trial  and  appellate  counsel  shall  make
    32  available  to  the  applicant or his or her counsel their complete files
    33  relating to the case; and
    34    (iii) Court clerks and probation departments shall make  available  to
    35  the applicant or his or her counsel the court files or probation records
    36  pertaining to the case; and
    37    (iv)  Nothing in this section shall preclude the court from conducting
    38  an in camera inspection of  evidence  and  issuing  a  protective  order
    39  pursuant  to  section  245.70  of this part at the request of the prose-
    40  cution or defense.
    41    (v) The discovery order will require that the people and prior defense
    42  counsel turn over all relevant discovery  to  the  person  applying  for
    43  relief  or  their counsel no later than thirty days from the issuance of
    44  the court's discovery order.
    45    (d) (i) An applicant who is in a position  adequately  to  raise  more
    46  than  one  ground  should  raise  every such ground upon which he or she
    47  intends to challenge the judgment or sentence. If the  motion  is  based
    48  upon  the existence or occurrence of facts, the motion papers [must] may
    49  contain sworn allegations thereof, whether by the [defendant]  applicant
    50  or  by  another  person  or persons. Such sworn allegations may be based
    51  upon personal knowledge of the affiant or upon information  and  belief,
    52  provided  that in the latter event the affiant must state the sources of
    53  such information and the grounds of such belief. The [defendant]  appli-
    54  cant  may  further submit documentary evidence or information supporting
    55  or tending to support the allegations of the moving papers.
        A. 98--A                            9

     1    (ii) The people may file with the court, and in such case must serve a
     2  copy thereof upon the [defendant] applicant or his or  her  counsel,  if
     3  any, an answer denying or admitting any or all of the allegations of the
     4  motion  papers,  and may further submit documentary evidence or informa-
     5  tion refuting or tending to refute such allegations.
     6    (iii)  After all papers of both parties have been filed, and after all
     7  documentary evidence or information, if any,  has  been  submitted,  the
     8  court must consider the same for the purpose of ascertaining whether the
     9  motion is determinable without a hearing to resolve questions of fact.
    10    [(b)  In  conjunction  with the filing or consideration of a motion to
    11  vacate a judgment pursuant to  section  440.10  of  this  article  by  a
    12  defendant  convicted after a trial, in cases where the court has ordered
    13  an evidentiary hearing upon such motion, the court may  order  that  the
    14  people  produce  or  make  available  for  inspection  property  in  its
    15  possession, custody, or control that was secured in connection with  the
    16  investigation  or prosecution of the defendant upon credible allegations
    17  by the defendant and a finding by  the  court  that  such  property,  if
    18  obtained,  would be probative to the determination of defendant's actual
    19  innocence, and that the request is reasonable. The court shall  deny  or
    20  limit  such  a  request  upon a finding that such a request, if granted,
    21  would threaten the integrity or chain of  custody  of  property  or  the
    22  integrity  of  the processes or functions of a laboratory conducting DNA
    23  testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
    24  other  substantially  negative consequences to any person, undermine the
    25  proper functions of law enforcement  including  the  confidentiality  of
    26  informants,  or on the basis of any other factor identified by the court
    27  in the interests of justice or public safety. The  court  shall  further
    28  ensure  that any property produced pursuant to this paragraph is subject
    29  to a protective order, where  appropriate.  The  court  shall  deny  any
    30  request made pursuant to this paragraph where:
    31    (i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
    32  article does not seek to demonstrate his or her actual innocence of  the
    33  offense  or  offenses  of  which  he  or  she was convicted that are the
    34  subject of the motion, or (2) the defendant has not  presented  credible
    35  allegations and the court has not found that such property, if obtained,
    36  would  be probative to the determination of the defendant's actual inno-
    37  cence and that the request is reasonable;
    38    (ii) the defendant has made his or her motion after  five  years  from
    39  the  date  of  the  judgment of conviction; provided, however, that this
    40  limitation period shall be tolled for five years if the defendant is  in
    41  custody  in connection with the conviction that is the subject of his or
    42  her motion, and provided further that, notwithstanding  such  limitation
    43  periods,  the  court may consider the motion if the defendant has shown:
    44  (A) that he or she has been pursuing his or her  rights  diligently  and
    45  that  some extraordinary circumstance prevented the timely filing of the
    46  motion; (B) that the facts upon which  the  motion  is  predicated  were
    47  unknown  to the defendant or his or her attorney and could not have been
    48  ascertained by the exercise of due diligence prior to the expiration  of
    49  the  statute of limitations; or (C) considering all circumstances of the
    50  case including but not limited to evidence of the defendant's guilt, the
    51  impact of granting or denying such motion upon public confidence in  the
    52  criminal justice system, or upon the safety or welfare of the community,
    53  and the defendant's diligence in seeking to obtain the requested proper-
    54  ty  or  related  relief,  the  interests  of  justice would be served by
    55  considering the motion;
        A. 98--A                           10

     1    (iii) the defendant is challenging a judgment convicting him or her of
     2  an offense that is not a felony defined in section 10.00  of  the  penal
     3  law; or
     4    (iv)  upon  a finding by the court that the property requested in this
     5  motion would be available through other means through reasonable efforts
     6  by the defendant to obtain such property.
     7    1-a.] 2. (a) [(1)] (i)  Where  the  [defendant's]  applicant's  motion
     8  requests  the  performance of a forensic DNA test on specified evidence,
     9  and upon the court's determination that any evidence containing deoxyri-
    10  bonucleic acid ("DNA") was secured in connection with the trial  or  the
    11  plea  resulting  in  the judgment, the court shall grant the application
    12  for forensic DNA testing of such evidence [upon its  determination  that
    13  if  a  DNA  test had been conducted on such evidence, and if the results
    14  had been admitted in the trial resulting in the judgment, there exists a
    15  reasonable probability that the verdict would have been  more  favorable
    16  to the defendant.
    17    (2) Where the defendant's motion for forensic DNA testing of specified
    18  evidence is made following a plea of guilty and entry of judgment there-
    19  on  convicting  him or her of: (A) a homicide offense defined in article
    20  one hundred twenty-five of the penal law, any felony sex offense defined
    21  in article one hundred thirty of the penal law, a violent felony offense
    22  as defined in paragraph (a) of subdivision one of section 70.02  of  the
    23  penal law, or (B) any other felony offense to which he or she pled guil-
    24  ty after being charged in an indictment or information in superior court
    25  with  one  or more of the offenses listed in clause (A) of this subpara-
    26  graph, then the court shall grant such a motion upon  its  determination
    27  that evidence containing DNA was secured in connection with the investi-
    28  gation  or  prosecution  of  the  defendant,  and if a DNA test had been
    29  conducted on such evidence and the results had been known to the parties
    30  prior to the entry of the defendant's plea and judgment  thereon,  there
    31  exists  a  substantial  probability  that the evidence would have estab-
    32  lished the defendant's actual innocence of the offense or offenses  that
    33  are the subject of the defendant's motion; provided, however, that:
    34    (i) the court shall consider whether the defendant had the opportunity
    35  to  request  such testing prior to entering a guilty plea, and, where it
    36  finds that the defendant had such opportunity and  unjustifiably  failed
    37  to do so, the court may deny such motion; and
    38    (ii)  a court shall deny the defendant's motion for forensic DNA test-
    39  ing where the defendant has made his or her motion more than five  years
    40  after  entry  of  the judgment of conviction; except that the limitation
    41  period may be tolled if the defendant has shown: (A) that he or she  has
    42  been  pursuing  his or her rights diligently and that some extraordinary
    43  circumstance prevented the timely filing of the motion for forensic  DNA
    44  testing;  (B)  that  the  facts upon which the motion is predicated were
    45  unknown to the defendant or his or her attorney and could not have  been
    46  ascertained  by the exercise of due diligence prior to the expiration of
    47  this statute of limitations; or (C) considering all circumstances of the
    48  case including but not limited to evidence of the defendant's guilt, the
    49  impact of granting or denying such motion upon public confidence in  the
    50  criminal justice system, or upon the safety or welfare of the community,
    51  and the defendant's diligence in seeking to obtain the requested proper-
    52  ty  or related relief, the interests of justice would be served by toll-
    53  ing such limitation period].
    54    (ii) Where the applicant's motion for relief requests the  performance
    55  of  any  other  testing  of  forensic  evidence or any physical evidence
    56  secured in the case, the judge shall grant the application  for  testing
        A. 98--A                           11

     1  of  such  evidence,  unless  there is no reasonable probability that the
     2  testing of this evidence could result in a different or improved outcome
     3  for the person applying for relief.
     4    (b) (i) In conjunction with the filing of a motion under this subdivi-
     5  sion,  the court may direct the people to provide the [defendant] appli-
     6  cant and his or her counsel with information in the  possession  of  the
     7  people  concerning  the  current  physical  location  of  the  specified
     8  evidence and if the specified evidence no longer exists or the  physical
     9  location  of the specified evidence is unknown, a representation to that
    10  effect and information and documentary evidence in the possession of the
    11  people concerning the last known physical  location  of  such  specified
    12  evidence.
    13    (ii) If there is a finding by the court that the specified evidence no
    14  longer  exists  or  the  physical location of such specified evidence is
    15  unknown, [such information in and of itself shall not be a  factor  from
    16  which  any inference unfavorable to the people may be drawn by the court
    17  in deciding a motion under this  section]  the  court  shall  grant  the
    18  applicant's motion and vacate the judgment.
    19    (iii)  The  court,  on  motion  of the [defendant] applicant, may also
    20  issue a subpoena duces tecum directing a  public  or  private  hospital,
    21  laboratory  or  other  entity  to produce such specified evidence in its
    22  possession and/or information and documentary evidence in its possession
    23  concerning the location and status of such specified evidence.
    24    (c) In response to a motion under this paragraph, upon notice  to  the
    25  parties  and  to the entity required to perform the search the court may
    26  order an entity that  has  access  to  the  combined  DNA  index  system
    27  ("CODIS") or its successor system to compare a DNA profile obtained from
    28  probative  biological  material gathered in connection with the investi-
    29  gation or prosecution of the [defendant] applicant against DNA databanks
    30  by keyboard searches, or a similar method that does not involve  upload-
    31  ing,  upon  a  court's determination that (1) such profile complies with
    32  federal bureau of investigation or  state  requirements,  whichever  are
    33  applicable and as such requirements are applied to law enforcement agen-
    34  cies  seeking  such a comparison, and that the data meet state DNA index
    35  system and/or national DNA index system criteria as  such  criteria  are
    36  applied to law enforcement agencies seeking such a comparison and (2) if
    37  such  comparison had been conducted, [and if the results had been admit-
    38  ted in the trial resulting in the judgment,]  a  reasonable  probability
    39  exists  that  the verdict would have been more favorable to the [defend-
    40  ant, or in a case involving a plea of guilty, if the  results  had  been
    41  available  to  the defendant prior to the plea, a reasonable probability
    42  exists that the conviction would not  have  resulted]  applicant.    For
    43  purposes of this subdivision, a "keyboard search" shall mean a search of
    44  a DNA profile against the databank in which the profile that is searched
    45  is not uploaded to or maintained in the databank.
    46    [2.  If  it  appears  by conceded or uncontradicted allegations of the
    47  moving papers or of the answer, or by unquestionable documentary  proof,
    48  that  there  are  circumstances which require denial thereof pursuant to
    49  subdivision two of section 440.10 or subdivision two of section  440.20,
    50  the  court  must summarily deny the motion. If it appears that there are
    51  circumstances authorizing, though not requiring, denial thereof pursuant
    52  to subdivision three of section 440.10 or subdivision three  of  section
    53  440.20,  the  court  may in its discretion either (a) summarily deny the
    54  motion, or (b) proceed to consider the merits thereof.]
        A. 98--A                           12

     1    3. Upon considering the merits of the motion, the court must grant  it
     2  without  conducting  a  hearing and vacate the judgment or set aside the
     3  sentence, as the case may be, if:
     4    (a) The moving papers allege a ground constituting legal basis for the
     5  motion; and
     6    (b)  Such  ground, if based upon the existence or occurrence of facts,
     7  is supported by sworn allegations thereof; and
     8    (c) The sworn allegations of fact essential to support the motion  are
     9  either  conceded by the people to be true or are conclusively substanti-
    10  ated by unquestionable documentary proof.
    11    4. Upon considering the merits of the motion, the court  may  deny  it
    12  without conducting a hearing if:
    13    (a)  The  moving  papers  do  not allege any ground constituting legal
    14  basis for the motion; or
    15    (b) [The motion is based upon the existence or occurrence of facts and
    16  the moving papers do not contain  sworn  allegations  substantiating  or
    17  tending to substantiate all the essential facts, as required by subdivi-
    18  sion one; or
    19    (c)]  An allegation of fact essential to support the motion is conclu-
    20  sively refuted by unquestionable documentary proof; or
    21    [(d)] (c) An allegation of fact essential to support the motion (i) is
    22  contradicted by a court record or other official document[, or  is  made
    23  solely  by  the  defendant  and is unsupported by any other affidavit or
    24  evidence,] and (ii) under these and all the other circumstances  attend-
    25  ing the case, there is no reasonable possibility that such allegation is
    26  true.
    27    5. If the court does not determine the motion pursuant to subdivisions
    28  two,  three or four, it must conduct a hearing and make findings of fact
    29  essential to the determination thereof. The [defendant] applicant has  a
    30  right to be present at such hearing but may waive such right in writing.
    31  If  he  or  she  does  not so waive it and if he or she is confined in a
    32  prison or other institution of this state, the court must cause  him  or
    33  her to be produced at such hearing.
    34    6.  At  such  a  hearing,  the [defendant] applicant has the burden of
    35  proving by a preponderance of  the  evidence  every  fact  essential  to
    36  support  the  motion.  At  the  hearing, defense counsel shall receive a
    37  daily copy of the hearing minutes.
    38    7. Regardless of whether a hearing  was  conducted,  the  court,  upon
    39  determining  the  motion,  must  set forth on the record its findings of
    40  fact, its conclusions of law and the reasons for its determination.
    41    § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
    42  amended by chapter 671 of the laws of 1971 and as renumbered by  chapter
    43  516 of the laws of 1986, is amended to read as follows:
    44    4.  An  order,  entered  pursuant  to [section 440.40, setting aside a
    45  sentence other than one of death, upon motion  of  the  People]  article
    46  four hundred forty of this title, shall be authorized to an intermediate
    47  appellate court as a matter of right.
    48    §  6. Subdivision 5 of section 450.10 of the criminal procedure law is
    49  REPEALED.
    50    § 7. Severability. If any provision of this act, or any application of
    51  any provision of this act, is held to be invalid, that shall not  affect
    52  the  validity or effectiveness of any other provision of this act, or of
    53  any other application of any provision of this act, which can  be  given
    54  effect  without  that  provision  or  application;  and to that end, the
    55  provisions and applications of this act are severable.
        A. 98--A                           13

     1    § 8. This act shall take effect on the sixtieth  day  after  it  shall
     2  have  become  a  law;  provided, however, that paragraphs (b) and (c) of
     3  subdivision 1 of section 440.30 of the criminal procedure law  as  added
     4  by  section  four  of this act shall take effect one year after it shall
     5  have become a law.