Bill Text: NY A05306 | 2017-2018 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to claims for unjust conviction and imprisonment.
Spectrum: Strong Partisan Bill (Democrat 28-2)
Status: (Introduced - Dead) 2018-03-05 - print number 5306a [A05306 Detail]
Download: New_York-2017-A05306-Introduced.html
Bill Title: Relates to claims for unjust conviction and imprisonment.
Spectrum: Strong Partisan Bill (Democrat 28-2)
Status: (Introduced - Dead) 2018-03-05 - print number 5306a [A05306 Detail]
Download: New_York-2017-A05306-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5306 2017-2018 Regular Sessions IN ASSEMBLY February 7, 2017 ___________ Introduced by M. of A. AUBRY -- read once and referred to the Committee on Judiciary AN ACT to amend the court of claims act and the tax law, in relation to claims for unjust conviction and imprisonment The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "wrongfully 2 convicted recovery act". 3 § 2. Section 8-b of the court of claims act, as added by chapter 1009 4 of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws 5 of 2007, is amended to read as follows: 6 § 8-b. Claims for unjust conviction and imprisonment. 1. The legisla- 7 ture finds and declares that innocent persons who have been wrongly 8 convicted of crimes and subsequently imprisoned have been frustrated in 9 seeking legal redress due to a variety of substantive and technical 10 obstacles in the law and that such persons should have an available 11 avenue of redress over and above the existing tort remedies to seek 12 compensation for damages. The legislature intends by enactment of the 13 provisions of this section that those innocent persons who can demon- 14 strate by clear and convincing evidence that they were unjustly 15 convicted and imprisoned be able to recover damages against the state. 16 In light of the substantial burden of proof that must be carried by such 17 persons, it is the intent of the legislature that the court, in exercis- 18 ing its discretion as permitted by law regarding the weight and admissi- 19 bility of evidence submitted pursuant to this section, shall, in the 20 interest of justice, give due consideration to difficulties of proof 21 caused by the passage of time, the death or unavailability of witnesses, 22 the destruction of evidence or other factors not caused by such persons 23 or those acting on their behalf. 24 2. Any person convicted and subsequently imprisoned for one or more 25 felonies or misdemeanors against the state which he or she did not EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08758-01-7A. 5306 2 1 commit may, under the conditions hereinafter provided, present a claim 2 for damages against the state. In scheduling court appearances and 3 filing deadlines, the court shall give docket priority at each stage of 4 the proceeding to such claims for damages under this subdivision where 5 the claimant asserts proof of innocence through DNA evidence. Any 6 adjournments granted in the course of such a proceeding should be for as 7 short a time as is practicable. 8 3. In order to present the claim for unjust conviction and imprison- 9 ment, claimant must establish by documentary evidence that: 10 (a) he or she has been convicted of one or more felonies or misdemea- 11 nors against the state and subsequently sentenced to a term of imprison- 12 ment, and has served all or any part of the sentence; and 13 (b) (i) he or she has been pardoned upon the ground of innocence of 14 the crime or crimes for which he or she was sentenced and which are the 15 grounds for the complaint; or (ii) his or her judgment of conviction was 16 reversed or vacated, and the accusatory instrument dismissed or, if a 17 new trial was ordered, either he or she was found not guilty at the new 18 trial or he or she was not retried and the accusatory instrument 19 dismissed; provided that the [judgement] judgment of conviction was 20 reversed or vacated, and the accusatory instrument was dismissed, on any 21 of the following grounds: (A) paragraph (a), (b), (c), (e) [or], (g) or 22 (g-1) of subdivision one of section 440.10 of the criminal procedure 23 law; or (B) subdivision one (where based upon grounds set forth in [item24(A) hereof] clause (A) of this subparagraph), two, three (where the 25 count dismissed was the sole basis for the imprisonment complained of) 26 or five of section 470.20 of the criminal procedure law; or (C) compara- 27 ble provisions of the former code of criminal procedure or subsequent 28 law; or (D) the statute, or application thereof, on which the accusatory 29 instrument was based violated the constitution of the United States or 30 the state of New York; and 31 (c) his or her claim is not time-barred by the provisions of subdivi- 32 sion seven of this section. 33 4. The claim shall state facts in sufficient detail to permit the 34 court to find that claimant is likely to succeed at trial in proving 35 that (a) he or she did not commit any of the acts charged in the accusa- 36 tory instrument or his or her acts or omissions charged in the accusato- 37 ry instrument did not constitute a felony or misdemeanor against the 38 state, and (b) he or she did not by his or her own conduct cause or 39 bring about his or her conviction. The claim shall be verified by the 40 claimant. If the court finds after reading the claim that claimant is 41 not likely to succeed at trial, it shall dismiss the claim, either on 42 its own motion or on the motion of the state. 43 5. In order to obtain a judgment in his or her favor, claimant must 44 prove by clear and convincing evidence that: 45 (a) he or she has been convicted of one or more felonies or misdemea- 46 nors against the state and subsequently sentenced to a term of imprison- 47 ment, and has served all or any part of the sentence; and 48 (b) (i) he or she has been pardoned upon the ground of innocence of 49 the crime or crimes for which he or she was sentenced and which are the 50 grounds for the complaint; or (ii) his or her judgment of conviction was 51 reversed or vacated, and the accusatory instrument dismissed or, if a 52 new trial was ordered, either he or she was found not guilty at the new 53 trial or he or she was not retried and the accusatory instrument 54 dismissed; provided that the [judgement] judgment of conviction was 55 reversed or vacated, and the accusatory instrument was dismissed, on any 56 of the following grounds: (A) paragraph (a), (b), (c), (e) [or], (g) orA. 5306 3 1 (g-1) of subdivision one of section 440.10 of the criminal procedure 2 law; or (B) subdivision one (where based upon grounds set forth in [item3(A) hereof] clause (A) of this subparagraph), two, three (where the 4 count dismissed was the sole basis for the imprisonment complained of) 5 or five of section 470.20 of the criminal procedure law; or (C) compara- 6 ble provisions of the former code of criminal procedure or subsequent 7 law; or (D) the statute, or application thereof, on which the accusatory 8 instrument was based violated the constitution of the United States or 9 the state of New York; and 10 (c) he or she did not commit any of the acts he or she was convicted 11 of or his or her acts or omissions charged in the accusatory instrument 12 or [his acts or omissions charged in the accusatory instrument] that any 13 such acts did not constitute a felony or misdemeanor against the state; 14 [and] 15 (d) he or she did not by his or her own conduct cause or bring about 16 his or her conviction; and 17 (e) he or she was not under sentence for a separate crime during the 18 period of time for which compensation is sought. 19 6. If the court finds that the claimant is entitled to a judgment, it 20 shall award damages in [such] the sum of [money] not less than one 21 million dollars for each year of incarceration and such additional 22 damages as the court determines will fairly and reasonably compensate 23 him or her. Such additional damages may include, but need not be limit- 24 ed to the following: 25 (a) compensation for lost wages; 26 (b) reimbursement for legal fees expended for the defense of the 27 convicted person at trial and upon appeal; 28 (c) medical expenses, including therapy; 29 (d) enrollment in the health benefit plan established pursuant to 30 section one hundred sixty-one of the civil service law. The full cost of 31 premium or subscription charges for such coverage shall be paid by the 32 state; 33 (e) educational assistance including: 34 (i) free tuition for the claimant and for any of the claimant's chil- 35 dren for attending a state university or college; 36 (ii) free tuition or reimbursement of tuition for the claimant and for 37 any of the claimant's children for attending a CUNY university or 38 college; and 39 (iii) free tuition at a state funded vocational program and/or job 40 skills program for the claimant and for any of the claimant's children; 41 (f) reimbursement of any child-support arrears that accrued and were 42 paid, including reimbursement to the custodial parent of the amount he 43 or she was receiving prior to the incarceration if it was modified by 44 virtue of the claimant's incarceration; 45 (g) treatment as veterans for purposes of receiving the following 46 benefits: 47 (i) access to the Homes for Veterans Program, which offers fixed-rate 48 mortgages with interest rates one-half percent below the interest rates 49 charged on SONYMA mortgages, with closing cost assistance; and 50 (ii) eligibility for appointment to non-competitive state employment 51 positions pursuant to sections fifty-five-b and fifty-five-c of the 52 civil service law. Those employees hired under this subparagraph shall 53 be afforded the same opportunity to take promotional examinations as 54 provided to employees in the competitive class. 55 7. Any person claiming compensation under this section based on a 56 pardon that was granted before the effective date of this section or theA. 5306 4 1 dismissal of an accusatory instrument that occurred before the effective 2 date of the chapter of the laws of two thousand seventeen that amended 3 this section shall file his or her claim within two years after [the] 4 such effective date [of this section]. Any person claiming compensation 5 under this section based on a pardon that was granted on or after the 6 effective date of this section or the dismissal of an accusatory instru- 7 ment that occurred on or after the effective date of the chapter of the 8 laws of two thousand seventeen that amended this section shall file his 9 or her claim within [two] three years after the pardon or dismissal. 10 8. The claimant shall be entitled to reasonable attorney's fees 11 incurred in the process of vacating or reversing his or her criminal 12 conviction. The claimant may petition the court of claims in seeking 13 reasonable attorney's fees against the state pursuant to this section. 14 Any award of attorney's fees shall be reimbursable by the state. 15 9. Any award of damages pursuant to the provisions of this section 16 shall be exempt from income tax to the extent provided in section thir- 17 teen-a of the tax law. 18 § 3. The tax law is amended by adding a new section 13-a to read as 19 follows: 20 § 13-a. Exemption from taxation for persons wrongfully convicted and 21 imprisoned. Notwithstanding any provision of law to the contrary, damage 22 award amounts received, including accumulated interest, by persons 23 wrongfully convicted and imprisoned as provided in section eight-b of 24 the court of claims act, whether or not includable in income for federal 25 income tax purposes, shall be exempt from all state and local taxes 26 imposed on or measured by income; provided however, that this exemption 27 shall not apply to amounts received from assets acquired with such 28 assets or with the proceeds from the sale of such assets. 29 § 4. This act shall take effect immediately.
