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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                           98

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                       (Prefiled)

                                     January 6, 2021
                                       ___________

        Introduced  by  M. of A. QUART, KIM, TAYLOR, DE LA ROSA -- read once and
          referred to the Committee on Codes

        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  a  new
     2  section 440.11 to read as follows:
     3  § 440.11 Motion to vacate judgment; change in the law.
     4    1.  At  any time after the entry of a judgment obtained at trial or by
     5  plea, the court in which it was entered may, upon motion of  the  appli-
     6  cant, vacate such judgment upon the ground that:
     7    (a)  The  applicant  was  convicted of any offense in the state of New
     8  York which has been subsequently decriminalized  and  is  thus  a  legal
     9  nullity.
    10    (b) There has been a change, whether substantive or procedural, in the
    11  law or laws applied in the process leading to the applicant's conviction
    12  where  sufficient  reason exists to allow retroactive application of the
    13  changed legal standard.
    14    2. If the court grants a motion under this section, it must vacate the
    15  judgment on the merits, dismiss  the  accusatory  instrument,  seal  the
    16  judgment,  and  may take such additional action as is appropriate in the
    17  circumstances.
    18    § 2. Section 440.10 of the criminal procedure law, paragraph (g-1)  of
    19  subdivision  1 as added by chapter 19 of the laws of 2012, paragraph (h)
    20  of subdivision 1, paragraph (b)  of  subdivision  2,  paragraph  (a)  of
    21  subdivision  3  and subdivision 4 as amended and subdivisions 7 and 8 as
    22  renumbered by chapter 332 of the laws of 2010, paragraph (i) of subdivi-
    23  sion 1 as amended by section 3 of part OO of chapter 55 of the  laws  of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01711-01-1
        A. 98                               2

     1  2019,  subparagraph  (ii) of paragraph (i) and paragraph (j) of subdivi-
     2  sion 1 and subdivision 6 as amended by chapter 131 of the laws of  2019,
     3  paragraph  (k)  of  subdivision 1 as added by chapter 132 of the laws of
     4  2019,  and  subdivision 9 as added by section 4 of part OO of chapter 55
     5  of the laws of 2019, is amended to read as follows:
     6  § 440.10 Motion to vacate judgment.
     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 [defend-
     9  ant] applicant, vacate such judgment upon the ground that:
    10    (a) The court did not have jurisdiction of the action or of the person
    11  of the [defendant] applicant; or
    12    (b) The judgment was procured by duress, misrepresentation or fraud on
    13  the  part  of  the  court  or  a prosecutor or a person acting for or in
    14  behalf of a court or a prosecutor; or
    15    (c) [Material evidence] Evidence adduced at a trial resulting  in  the
    16  judgment  or  that  was  relied  upon by any party as a basis for a plea
    17  agreement was false [and was, prior to the entry of the judgment,  known
    18  by the prosecutor or by the court to be false]; or
    19    (d)  [Material  evidence]  Evidence  adduced  by the people at a trial
    20  resulting in the judgment or that was relied upon  by  any  party  as  a
    21  basis  for  a  plea  agreement was procured in violation of the [defend-
    22  ant's] applicant's rights under the constitution of this state or of the
    23  United States; or
    24    (e) During the proceedings resulting in the judgment, the  [defendant]
    25  applicant,  by  reason  of  mental  disease  or defect, was incapable of
    26  understanding or participating in such proceedings; or
    27    (f) Improper [and prejudicial] conduct not  appearing  in  the  record
    28  occurred  during  a trial resulting in the judgment which conduct, if it
    29  had appeared in the  record,  would  have  [required]  made  possible  a
    30  reversal of the judgment upon an appeal therefrom; or
    31    (g)  New  evidence  has been discovered [since the entry of a judgment
    32  based upon a verdict of guilty after trial, which could  not  have  been
    33  produced  by  the  defendant at the trial even with due diligence on his
    34  part and which] or become available that,  when  viewed  alone  or  with
    35  other evidence, is of such character as to create a reasonable probabil-
    36  ity  that  had  such  evidence  been received at the trial or discovered
    37  prior to trial or plea agreement that the verdict  or  plea  would  have
    38  been more favorable to the [defendant; provided that a motion based upon
    39  such  ground must be made with due diligence after the discovery of such
    40  alleged new evidence] applicant. Types of new  evidence  shall  include,
    41  but not be limited to newly available forensic evidence or evidence that
    42  has  either  been  repudiated  by the expert who originally provided the
    43  opinion at a hearing or trial or  that  has  been  undermined  by  later
    44  scientific research or technological advances; or
    45    (g-1)  [Forensic  DNA]  In  cases  involving  the  forensic testing of
    46  evidence performed since the entry of a judgment, [(1) in the case of  a
    47  defendant  convicted  after a guilty plea, the court has determined that
    48  the defendant  has  demonstrated  a  substantial  probability  that  the
    49  defendant  was  actually  innocent of the offense of which he or she was
    50  convicted, or (2) in the case of a defendant convicted after  a  trial,]
    51  the court has determined that there exists a reasonable probability that
    52  the verdict or plea offer would have been more favorable to the [defend-
    53  ant] applicant, or the applicant would have rejected the plea offer.
    54    (h)  The judgment was obtained in violation of a right of the [defend-
    55  ant] applicant under the constitution of this state  or  of  the  United
    56  States,  including, but not limited to, a judgment entered, whether upon
        A. 98                               3

     1  trial or guilty plea, against an applicant who is actually innocent.  An
     2  applicant is actually innocent where the applicant proves by  a  prepon-
     3  derance of the evidence that no reasonable jury of the applicant's peers
     4  would have found the applicant guilty beyond a reasonable doubt; or
     5    (i) The judgment is a conviction where the [arresting charge was under
     6  section  240.37 (loitering for the purpose of engaging in a prostitution
     7  offense, provided that the defendant was not alleged to be loitering for
     8  the purpose of patronizing a person for prostitution or promoting  pros-
     9  titution)  or  230.00 (prostitution) or 230.03 (prostitution in a school
    10  zone) of the penal law, and the defendant's]  applicant's  participation
    11  in  the  offense was a result of having been a victim of sex trafficking
    12  under section 230.34 of the penal law, sex trafficking of a child  under
    13  section  230.34-a  of  the  penal  law,  labor trafficking under section
    14  135.35 of the penal law,  aggravated  labor  trafficking  under  section
    15  135.37 of the penal law, compelling prostitution under section 230.33 of
    16  the  penal  law, or trafficking in persons under the Trafficking Victims
    17  Protection Act (United States Code, title 22, chapter 78); provided that
    18    (i) [a motion under this paragraph shall be made with  due  diligence,
    19  after  the  defendant  has  ceased to be a victim of such trafficking or
    20  compelling prostitution crime or has sought services for victims of such
    21  trafficking or compelling  prostitution  crime,  subject  to  reasonable
    22  concerns  for the safety of the defendant, family members of the defend-
    23  ant, or other victims of such  trafficking  or  compelling  prostitution
    24  crime  that  may  be  jeopardized by the bringing of such motion, or for
    25  other reasons consistent with the purpose of this paragraph; and
    26    (ii)] official documentation of the [defendant's]  applicant's  status
    27  as  a  victim  of  sex  trafficking, labor trafficking, aggravated labor
    28  trafficking, compelling prostitution or trafficking in  persons  at  the
    29  time  of  the  offense  from a federal, state or local government agency
    30  shall create a presumption that the  [defendant's]  applicant's  partic-
    31  ipation in the offense was a result of having been a victim of sex traf-
    32  ficking,  labor  trafficking,  aggravated  labor trafficking, compelling
    33  prostitution or trafficking in persons, but shall not  be  required  for
    34  granting a 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 agency except when specifically authorized by the
    38  court; and
    39    (iii) when a motion is filed under this paragraph, the court may, upon
    40  the consent of the applicant and all of  the  involved  state  or  local
    41  prosecutorial  agencies,  consolidate  into  one  proceeding a motion to
    42  vacate judgments imposed by distinct or multiple criminal courts.
    43    (j) The judgment is a conviction for [a class A or  unclassified]  any
    44  misdemeanor  entered  prior to the effective date of this paragraph [and
    45  satisfies the ground prescribed in paragraph (h)  of  this  subdivision]
    46  that resulted in ongoing collateral consequences, including potential or
    47  actual  immigration consequences.   There shall be a rebuttable presump-
    48  tion that a conviction by plea to  such  an  offense  was  not  knowing,
    49  voluntary  and  intelligent,  [based on ongoing collateral consequences,
    50  including potential or actual immigration consequences, and  there]  and
    51  thus  rendered the plea constitutionally defective pursuant to paragraph
    52  (h) of this subdivision.  There shall be a rebuttable presumption that a
    53  conviction by verdict to such an offense constitutes cruel  and  unusual
    54  punishment  under  section five of article one of the state constitution
    55  based on such consequences  and  thus  rendered  the  verdict  constitu-
    56  tionally defective pursuant to paragraph (h) of this subdivision; or
        A. 98                               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  this  para-
    14  graph  and is a conviction for an offense as defined in subparagraph (i)
    15  or (ii) of paragraph (k) of subdivision three of section 160.50 of  this
    16  part, or a misdemeanor under article two hundred twenty-one of the penal
    17  law, in which case the court shall presume that a conviction by plea for
    18  the  aforementioned  offenses was not knowing, voluntary and intelligent
    19  if it has severe or ongoing consequences, including but not  limited  to
    20  potential or actual immigration consequences, and thus rendered the plea
    21  constitutionally  defective  pursuant  to paragraph (h) of this subdivi-
    22  sion; and shall presume that a conviction by verdict for  the  aforemen-
    23  tioned  offenses  constitutes cruel and unusual punishment under section
    24  five of article one of the state constitution,  based  on  those  conse-
    25  quences, and thus rendered the verdict constitutionally defective pursu-
    26  ant  to  paragraph  (h) of this subdivision.  The people may rebut these
    27  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 in such a 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  unjustifiable failure to raise such ground or issue
    54  upon an appeal actually perfected by him; or
    55    (d)] The ground or issue raised relates solely to the validity of  the
    56  sentence  and  not to the validity of the conviction.  In such case, the
        A. 98                               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.
    49    [7.] 6. Upon a new trial resulting from an order vacating  a  judgment
    50  pursuant  to  this  section, the indictment is deemed to contain all the
    51  counts and to charge all the offenses which it contained and charged  at
    52  the  time  the  previous  trial was commenced, regardless of whether any
    53  count was dismissed by the court in the course of such trial, except (a)
    54  those upon or of which the [defendant] applicant was acquitted or deemed
    55  to have been acquitted, and (b) those dismissed by  the  order  vacating
    56  the  judgment,  and (c) those previously dismissed by an appellate court
        A. 98                               6

     1  upon an appeal from the judgment, or by any court upon a previous  post-
     2  judgment motion.
     3    [8.]  7.  Upon  an order which vacates a judgment based upon a plea of
     4  guilty to an accusatory instrument or a part thereof, but which does not
     5  dismiss the entire accusatory instrument, the criminal action is, in the
     6  absence of an  express  direction  to  the  contrary,  restored  to  its
     7  [prepleading]  pre-pleading  status  and  the  accusatory  instrument is
     8  deemed to contain all the counts and to charge all the offenses which it
     9  contained and charged at the time of the entry of the plea, except those
    10  subsequently dismissed under circumstances specified in  paragraphs  (b)
    11  and  (c)  of subdivision six.   Where the plea of guilty was entered and
    12  accepted, pursuant to subdivision three  of  section  220.30,  upon  the
    13  condition  that  it  constituted  a complete disposition not only of the
    14  accusatory instrument underlying the judgment vacated but also of one or
    15  more other accusatory instruments against the [defendant] applicant then
    16  pending in the same court, the order  of  vacation  completely  restores
    17  such other accusatory instruments; and such is the case even though such
    18  order dismisses the main accusatory instrument underlying the judgment.
    19    [9.]  8. Upon granting of a motion pursuant to paragraph (j) of subdi-
    20  vision one of this section, the court [may] must vacate the judgment and
    21  may, in addition to the remedies in subdivision three of  this  section,
    22  either:
    23    (a)  With  the  consent of the people, [vacate the judgment or] modify
    24  the judgment by reducing it to one of conviction for a lesser offense or
    25  allow the applicant to replead to  a  disposition  agreed  upon  by  the
    26  parties; or
    27    (b)  [Vacate  the judgment and order a new trial wherein the defendant
    28  enters] Permit the applicant to enter a plea to  the  same  offense  [in
    29  order  to  permit the court to] and resentence the [defendant] applicant
    30  in accordance with the amendatory provisions  of  subdivision  one-a  of
    31  section 70.15 of the penal law.
    32    9.  Upon granting of a motion pursuant to paragraph j-1 of subdivision
    33  one of this section, the court must vacate the judgment and  permit  the
    34  applicant  to  enter  a  plea to the same offense in order to permit the
    35  court to resentence the applicant to three hundred sixty-four days.
    36    10. Notwithstanding any other provision of  this  section,  the  court
    37  must order a hearing and address the merits of any claim for relief when
    38  the  applicant  asserts  that, in light of all available evidence, there
    39  exists a colorable claim that he or she is actually innocent.  When  the
    40  applicant  raises  an actual innocence claim based on, in whole or part,
    41  new evidence of actual innocence, the court may not summarily  deny  the
    42  motion  on  the  ground  that  the applicant previously moved for relief
    43  under this article.
    44    § 3. Section 440.20 of the criminal procedure law,  subdivision  1  as
    45  amended by chapter 1 of the laws of 1995, is amended to read as follows:
    46  § 440.20 Motion to set aside sentence; by [defendant] applicant.
    47    1.  At  any time after the entry of a judgment, the court in which the
    48  judgment was entered may, upon motion of the [defendant] applicant,  set
    49  aside  the  sentence upon the ground that it was unauthorized, illegally
    50  imposed, exceeded the maximum allowed by law,  obtained  or  imposed  in
    51  violation  of  the  defendant's  constitutional rights, or was otherwise
    52  invalid as a matter of law.  Where the judgment includes a  sentence  of
    53  death, the court may also set aside the sentence upon any of the grounds
    54  set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
    55  section 440.10 as applied to  a  separate  sentencing  proceeding  under
    56  section  400.27,  provided,  however,  that  to the extent the ground or
        A. 98                               7

     1  grounds asserted include one or more  of  the  aforesaid  paragraphs  of
     2  subdivision  one  of section 440.10, the court must also apply [subdivi-
     3  sions] subdivision two [and three] of section 440.10, other  than  para-
     4  graph  [(d)]  (c) of [subdivision two of] such [section] subdivision, in
     5  determining the motion. In the event the court enters an order  granting
     6  a  motion to set aside a sentence of death under this section, the court
     7  must either direct  a  new  sentencing  proceeding  in  accordance  with
     8  section  400.27  or,  to  the extent that the defendant cannot be resen-
     9  tenced to death consistent with the laws of this state or the  constitu-
    10  tion  of this state or of the United States, resentence the defendant to
    11  life imprisonment without parole or to a sentence  of  imprisonment  for
    12  the class A-I felony of murder in the first degree other than a sentence
    13  of  life  imprisonment without parole. Upon granting the motion upon any
    14  of the grounds set forth in the aforesaid paragraphs of subdivision  one
    15  of  section 440.10 and setting aside the sentence, the court must afford
    16  the people a reasonable period of time, which shall not be less than ten
    17  days, to determine whether to take an  appeal  from  the  order  setting
    18  aside the sentence of death. The taking of an appeal by the people stays
    19  the  effectiveness  of  that portion of the court's order that directs a
    20  new sentencing proceeding.
    21    2.   Notwithstanding the provisions  of  subdivision  one,  the  court
    22  [must]  may deny such a motion when the ground or issue raised thereupon
    23  was previously determined on the merits upon an appeal from the judgment
    24  or sentence, unless since the time of such appellate determination there
    25  has been a retroactively effective change in the  law  controlling  such
    26  issue.    However, if all of the evidence currently before the court was
    27  not duly considered previously by the court, the court  shall  not  deny
    28  the  motion  to  vacate  and  instead shall order a hearing or grant the
    29  motion. Even if the court has already considered  all  of  the  evidence
    30  currently before the court, the court in the interest of justice and for
    31  good cause shown may grant the motion if it is otherwise meritorious.
    32    3.   [Notwithstanding the provisions of subdivision one, the court may
    33  deny such a motion when the ground or issue raised thereupon was  previ-
    34  ously  determined  on  the merits upon a prior motion or proceeding in a
    35  court of this state, other than an appeal from the judgment, or  upon  a
    36  prior  motion or proceeding in a federal court, unless since the time of
    37  such determination there has been a retroactively  effective  change  in
    38  the  law  controlling such issue.   Despite such determination, however,
    39  the court in the interest of justice and for good cause  shown,  may  in
    40  its discretion grant the motion if it is otherwise meritorious.
    41    4.]    An order setting aside a sentence pursuant to this section does
    42  not affect the validity or status  of  the  underlying  conviction,  and
    43  after  entering  such an order the court must resentence the [defendant]
    44  applicant in accordance with the law.   The date of  such  resentencing,
    45  following  the grant of a motion pursuant to this section, shall control
    46  for purposes of determining an applicant's predicate status under  para-
    47  graph (b) of subdivision one of section 70.04, paragraph (b) of subdivi-
    48  sion  one  of section 70.06, section 70.08, paragraph (b) of subdivision
    49  one of section 70.10, and section 70.70 of the penal law.
    50    § 4. Section 440.30 of the criminal procedure law, subdivisions 1  and
    51  1-a  as  amended by chapter 19 of the laws of 2012 and the opening para-
    52  graph of paragraph (b) of subdivision 1 as amended by section 10 of part
    53  LLL of chapter 59 of the laws of 2019, is amended to read as follows:
    54  § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
    55    1. (a) [A] An application for a motion to vacate a  judgment  pursuant
    56  to  section 440.10 or 440.11 of this article and a motion to set aside a
        A. 98                               8

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

     1  any, an answer denying or admitting any or all of the allegations of the
     2  motion  papers,  and may further submit documentary evidence or informa-
     3  tion refuting or tending to refute such allegations.
     4    (iii)  After all papers of both parties have been filed, and after all
     5  documentary evidence or information, if any,  has  been  submitted,  the
     6  court must consider the same for the purpose of ascertaining whether the
     7  motion is determinable without a hearing to resolve questions of fact.
     8    [(b)  In  conjunction  with the filing or consideration of a motion to
     9  vacate a judgment pursuant to  section  440.10  of  this  article  by  a
    10  defendant  convicted after a trial, in cases where the court has ordered
    11  an evidentiary hearing upon such motion, the court may  order  that  the
    12  people  produce  or  make  available  for  inspection  property  in  its
    13  possession, custody, or control that was secured in connection with  the
    14  investigation  or prosecution of the defendant upon credible allegations
    15  by the defendant and a finding by  the  court  that  such  property,  if
    16  obtained,  would be probative to the determination of defendant's actual
    17  innocence, and that the request is reasonable. The court shall  deny  or
    18  limit  such  a  request  upon a finding that such a request, if granted,
    19  would threaten the integrity or chain of  custody  of  property  or  the
    20  integrity  of  the processes or functions of a laboratory conducting DNA
    21  testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
    22  other  substantially  negative consequences to any person, undermine the
    23  proper functions of law enforcement  including  the  confidentiality  of
    24  informants,  or on the basis of any other factor identified by the court
    25  in the interests of justice or public safety. The  court  shall  further
    26  ensure  that any property produced pursuant to this paragraph is subject
    27  to a protective order, where  appropriate.  The  court  shall  deny  any
    28  request made pursuant to this paragraph where:
    29    (i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
    30  article does not seek to demonstrate his or her actual innocence of  the
    31  offense  or  offenses  of  which  he  or  she was convicted that are the
    32  subject of the motion, or (2) the defendant has not  presented  credible
    33  allegations and the court has not found that such property, if obtained,
    34  would  be probative to the determination of the defendant's actual inno-
    35  cence and that the request is reasonable;
    36    (ii) the defendant has made his or her motion after  five  years  from
    37  the  date  of  the  judgment of conviction; provided, however, that this
    38  limitation period shall be tolled for five years if the defendant is  in
    39  custody  in connection with the conviction that is the subject of his or
    40  her motion, and provided further that, notwithstanding  such  limitation
    41  periods,  the  court may consider the motion if the defendant has shown:
    42  (A) that he or she has been pursuing his or her  rights  diligently  and
    43  that  some extraordinary circumstance prevented the timely filing of the
    44  motion; (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  the  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
    53  considering the motion;
    54    (iii) the defendant is challenging a judgment convicting him or her of
    55  an offense that is not a felony defined in section 10.00  of  the  penal
    56  law; or
        A. 98                              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.
        A. 98                              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
        A. 98                              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 immediately.