Bill Text: NY S00215 | 2023-2024 | General Assembly | Introduced
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 31-0)
Status: (Introduced - Dead) 2024-01-03 - REFERRED TO CODES [S00215 Detail]
Download: New_York-2023-S00215-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 215 2023-2024 Regular Sessions IN SENATE (Prefiled) January 4, 2023 ___________ Introduced by Sens. MYRIE, BAILEY, BRISPORT, BROUK, CLEARE, COMRIE, COONEY, GIANARIS, GOUNARDES, HARCKHAM, HOYLMAN, JACKSON, KAVANAGH, KRUEGER, LIU, MAY, PARKER, RAMOS, RIVERA, SALAZAR, SEPULVEDA, SERRANO, THOMAS -- read twice and ordered printed, and when printed to be committed 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 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 15 where sufficient reason exists to allow retroactive application of the 16 changed legal standard. 17 2. If the court grants a motion under this section, it must vacate the 18 judgment on the merits, dismiss the accusatory instrument, seal the 19 judgment, and may take such additional action as is appropriate in the 20 circumstances. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00806-01-3S. 215 2 1 § 2. Section 440.10 of the criminal procedure law, paragraph (g-1) of 2 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph (h) 3 of subdivision 1, paragraph (a) of subdivision 3 and subdivision 4 as 4 amended and subdivisions 7 and 8 as renumbered by chapter 332 of the 5 laws of 2010, paragraph (i) of subdivision 1 and subdivision 6 as 6 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision 7 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi- 8 vision 1 as amended by chapter 92 of the laws of 2021, paragraphs (b) 9 and (c) of subdivision 2 as amended by chapter 501 of the laws of 2021, 10 and subdivision 9 as added by section 4 of part OO of chapter 55 of the 11 laws of 2019, is amended to read as follows: 12 § 440.10 Motion to vacate judgment. 13 1. At any time after the entry of a judgment obtained at trial or by 14 plea, the court in which it was entered may, upon motion of the [defend-15ant] applicant, vacate such judgment upon the ground that: 16 (a) The court did not have jurisdiction of the action or of the person 17 of the [defendant] applicant; or 18 (b) The judgment was procured by duress, misrepresentation or fraud on 19 the part of the court or a prosecutor or a person acting for or in 20 behalf of a court or a prosecutor; or 21 (c) [Material evidence] Evidence adduced at a trial resulting in the 22 judgment or that was relied upon by any party as a basis for a plea 23 agreement was false [and was, prior to the entry of the judgment, known24by the prosecutor or by the court to be false]; or 25 (d) [Material evidence] Evidence adduced by the people at a trial 26 resulting in the judgment or that was relied upon by any party as a 27 basis for a plea agreement was procured in violation of the [defend-28ant's] applicant's rights under the constitution of this state or of the 29 United States; or 30 (e) During the proceedings resulting in the judgment, the [defendant] 31 applicant, by reason of mental disease or defect, was incapable of 32 understanding or participating in such proceedings; or 33 (f) Improper [and prejudicial] conduct not appearing in the record 34 occurred during a trial resulting in the judgment which conduct, if it 35 had appeared in the record, would have [required] made possible a 36 reversal of the judgment upon an appeal therefrom; or 37 (g) New evidence has been discovered [since the entry of a judgment38based upon a verdict of guilty after trial, which could not have been39produced by the defendant at the trial even with due diligence on his40part and which] or become available that, when viewed alone or with 41 other evidence, is of such character as to create a reasonable probabil- 42 ity that had such evidence been received at the trial or discovered 43 prior to trial or plea agreement that the verdict or plea would have 44 been more favorable to the [defendant; provided that a motion based upon45such ground must be made with due diligence after the discovery of such46alleged new evidence] applicant. Types of new evidence shall include, 47 but not be limited to newly available forensic evidence or evidence that 48 has either been repudiated by the expert who originally provided the 49 opinion at a hearing or trial or that has been undermined by later 50 scientific research or technological advances; or 51 (g-1) [Forensic DNA] In cases involving the forensic testing of 52 evidence performed since the entry of a judgment, [(1) in the case of a53defendant convicted after a guilty plea, the court has determined that54the defendant has demonstrated a substantial probability that the55defendant was actually innocent of the offense of which he or she was56convicted, or (2) in the case of a defendant convicted after a trial,]S. 215 3 1 the court has determined that there exists a reasonable probability that 2 the verdict or plea offer would have been more favorable to the [defend-3ant] applicant, or the applicant would have rejected the plea offer. 4 (h) The judgment was obtained in violation of a right of the [defend-5ant] applicant under the constitution of this state or of the United 6 States, including, but not limited to, a judgment entered, whether upon 7 trial or guilty plea, against an applicant who is actually innocent. An 8 applicant is actually innocent where the applicant proves by a prepon- 9 derance of the evidence that no reasonable jury of the applicant's peers 10 would have found the applicant guilty beyond a reasonable doubt; or 11 (i) The judgment is a conviction where the [defendant's] applicant's 12 participation in the offense was a result of having been a victim of sex 13 trafficking under section 230.34 of the penal law, sex trafficking of a 14 child under section 230.34-a of the penal law, labor trafficking under 15 section 135.35 of the penal law, aggravated labor trafficking under 16 section 135.37 of the penal law, compelling prostitution under section 17 230.33 of the penal law, or trafficking in persons under the Trafficking 18 Victims Protection Act (United States Code, title 22, chapter 78); 19 provided that 20 (i) official documentation of the [defendant's] applicant's status as 21 a victim of sex trafficking, labor trafficking, aggravated labor traf- 22 ficking, compelling prostitution, or trafficking in persons at the time 23 of the offense from a federal, state or local government agency shall 24 create a presumption that the [defendant's] applicant's participation in 25 the offense was a result of having been a victim of sex trafficking, 26 labor trafficking, aggravated labor trafficking, compelling prostitution 27 or trafficking in persons, but shall not be required for granting a 28 motion under this paragraph; 29 (ii) a motion under this paragraph, and all pertinent papers and docu- 30 ments, shall be confidential and may not be made available to any person 31 or public or private [entity] agency except [where] when specifically 32 authorized by the court; and 33 (iii) when a motion is filed under this paragraph, the court may, upon 34 the consent of the petitioner and all of the involved state [and] or 35 local prosecutorial agencies [that prosecuted each matter], consolidate 36 into one proceeding a motion to vacate judgments imposed by distinct or 37 multiple criminal courts; or 38 (j) The judgment is a conviction for [a class A or unclassified] any 39 misdemeanor entered prior to the effective date of this paragraph [and40satisfies the ground prescribed in paragraph (h) of this subdivision] 41 that resulted in ongoing collateral consequences, including potential or 42 actual immigration consequences. There shall be a rebuttable presump- 43 tion that a conviction by plea to such an offense was not knowing, 44 voluntary and intelligent, [based on ongoing collateral consequences,45including potential or actual immigration consequences, and there] and 46 thus rendered the plea constitutionally defective pursuant to paragraph 47 (h) of this subdivision. There shall be a rebuttable presumption that a 48 conviction by verdict to such an offense constitutes cruel and unusual 49 punishment under section five of article one of the state constitution 50 based on such consequences and thus rendered the verdict constitu- 51 tionally defective pursuant to paragraph (h) of this subdivision; or 52 (j-1) The judgment is a conviction for a class D or E felony entered 53 prior to the effective date of this paragraph for which the sentence 54 imposed was one year, and such sentence resulted in ongoing collateral 55 consequences, including potential or actual immigration consequences. 56 There shall be a rebuttable presumption that a conviction by plea toS. 215 4 1 such an offense was not knowing, voluntary and intelligent, and thus 2 rendered the plea constitutionally defective pursuant to paragraph (h) 3 of this subdivision. There shall be a rebuttable presumption that a 4 conviction by verdict to such an offense constitutes cruel and unusual 5 punishment under section five of article one of the state constitution 6 based on such consequences, and thus rendered the verdict constitu- 7 tionally defective pursuant to paragraph (h) of this subdivision; or 8 (k) The judgment occurred prior to the effective date of the laws of 9 two thousand [twenty-one] twenty-three that amended this paragraph and 10 is a conviction for an offense as defined in [subparagraphs] subpara- 11 graph (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of 12 section 160.50 of this part, or a misdemeanor under the former article 13 two hundred twenty-one of the penal law, in which case the court shall 14 presume that a conviction by plea for the aforementioned offenses was 15 not knowing, voluntary and intelligent if it has severe or ongoing 16 consequences, including but not limited to potential or actual immi- 17 gration consequences, and shall presume that a conviction by verdict for 18 the aforementioned offenses constitutes cruel and unusual punishment 19 under section five of article one of the state constitution, based on 20 those consequences. The people may rebut these presumptions[.]; or 21 (l) Any offense in the state of New York that an intermediate appel- 22 late court, court of appeals, or United States federal court has deemed 23 in violation of the constitution of this state or of the United States, 24 or any other right under state or federal law. 25 2. Notwithstanding the provisions of subdivision one, the court [must] 26 may deny a motion to vacate a judgment when: 27 (a) The ground or issue raised upon the motion was previously deter- 28 mined on the merits upon an appeal from the judgment, unless since the 29 time of such appellate determination there has been a retroactively 30 effective change in the law controlling such issue. However, if all of 31 the evidence currently before the court was not duly considered previ- 32 ously by the court, the court shall grant the motion or order the hear- 33 ing; or 34 (b) The judgment is, at the time of the motion, appealable or pending 35 on appeal, and sufficient facts appear on the record with respect to the 36 ground or issue raised upon the motion to permit adequate review thereof 37 upon such an appeal unless the issue raised upon such motion is ineffec- 38 tive assistance of counsel. This paragraph shall not apply to a motion 39 under paragraph (i), (j), (k) or (l) of subdivision one of this section; 40 or 41 (c) [Although sufficient facts appear on the record of the proceedings42underlying the judgment to have permitted, upon appeal from such judg-43ment, adequate review of the ground or issue raised upon the motion, no44such appellate review or determination occurred owing to the defendant's45unjustifiable failure to take or perfect an appeal during the prescribed46period or to his or her unjustifiable failure to raise such ground or47issue upon an appeal actually perfected by him or her unless the issue48raised upon such motion is ineffective assistance of counsel; or49(d)] The ground or issue raised relates solely to the validity of the 50 sentence and not to the validity of the conviction. In such case, the 51 court shall deem the motion to have been made pursuant to section 440.20 52 of this article. 53 [3. Notwithstanding the provisions of subdivision one, the court may54deny a motion to vacate a judgment when:55(a) Although facts in support of the ground or issue raised upon the56motion could with due diligence by the defendant have readily been madeS. 215 5 1to appear on the record in a manner providing adequate basis for review2of such ground or issue upon an appeal from the judgment, the defendant3unjustifiably failed to adduce such matter prior to sentence and the4ground or issue in question was not subsequently determined upon appeal.5This paragraph does not apply to a motion based upon deprivation of the6right to counsel at the trial or upon failure of the trial court to7advise the defendant of such right, or to a motion under paragraph (i)8of subdivision one of this section; or9(b) The ground or issue raised upon the motion was previously deter-10mined on the merits upon a prior motion or proceeding in a court of this11state, other than an appeal from the judgment, or upon a motion or12proceeding in a federal court; unless since the time of such determi-13nation there has been a retroactively effective change in the law14controlling such issue; or15(c) Upon a previous motion made pursuant to this section, the defend-16ant was in a position adequately to raise the ground or issue underlying17the present motion but did not do so.] 18 (d) Although the court may deny the motion under any of the circum- 19 stances specified in this subdivision, in the interest of justice and 20 for good cause shown it may in its discretion grant the motion if it is 21 otherwise meritorious and vacate the judgment. 22 [4.] 3. If the court grants the motion, it must, except as provided in 23 subdivision [five] four or [six] five of this section, vacate the judg- 24 ment, and must either: 25 (a) dismiss and seal the accusatory instrument, or 26 (b) order a new trial, or 27 (c) take such other action as is appropriate in the circumstances. 28 [5.] 4. Upon granting the motion upon the ground, as prescribed in 29 paragraph (g) of subdivision one, that newly discovered evidence creates 30 a probability that had such evidence been received at the trial the 31 verdict would have been more favorable to the [defendant] applicant in 32 that the conviction would have been for a lesser offense than the one 33 contained in the verdict, the court may either: 34 (a) Vacate the judgment and order a new trial; or 35 (b) With the consent of the people, modify the judgment by reducing it 36 to one of conviction for such lesser offense. In such case, the court 37 must re-sentence the [defendant] applicant accordingly. 38 [6.] 5. If the court grants a motion under [paragraph (i) or] para- 39 graph [(k)] (h), (i), (j), (k) or (l) of subdivision one of this 40 section, it must vacate the judgment [and] on the merits, dismiss the 41 accusatory instrument, seal the judgment, and may take such additional 42 action as is appropriate in the circumstances. [In the case of a motion43granted under paragraph (i) of subdivision one of this section, the44court must vacate the judgment on the merits because the defendant's45participation in the offense was a result of having been a victim of46trafficking.477.] 6. Upon a new trial resulting from an order vacating a judgment 48 pursuant to this section, the indictment is deemed to contain all the 49 counts and to charge all the offenses which it contained and charged at 50 the time the previous trial was commenced, regardless of whether any 51 count was dismissed by the court in the course of such trial, except (a) 52 those upon or of which the [defendant] applicant was acquitted or deemed 53 to have been acquitted, and (b) those dismissed by the order vacating 54 the judgment, and (c) those previously dismissed by an appellate court 55 upon an appeal from the judgment, or by any court upon a previous post- 56 judgment motion.S. 215 6 1 [8.] 7. Upon an order which vacates a judgment based upon a plea of 2 guilty to an accusatory instrument or a part thereof, but which does not 3 dismiss the entire accusatory instrument, the criminal action is, in the 4 absence of an express direction to the contrary, restored to its 5 [prepleading] pre-pleading status and the accusatory instrument is 6 deemed to contain all the counts and to charge all the offenses which it 7 contained and charged at the time of the entry of the plea, except those 8 subsequently dismissed under circumstances specified in paragraphs (b) 9 and (c) of subdivision six. Where the plea of guilty was entered and 10 accepted, pursuant to subdivision three of section 220.30, upon the 11 condition that it constituted a complete disposition not only of the 12 accusatory instrument underlying the judgment vacated but also of one or 13 more other accusatory instruments against the [defendant] applicant then 14 pending in the same court, the order of vacation completely restores 15 such other accusatory instruments; and such is the case even though such 16 order dismisses the main accusatory instrument underlying the judgment. 17 [9.] 8. Upon granting of a motion pursuant to paragraph (j) of subdi- 18 vision one of this section, the court [may] must vacate the judgment and 19 may, in addition to the remedies in subdivision three of this section, 20 either: 21 (a) With the consent of the people, [vacate the judgment or] modify 22 the judgment by reducing it to one of conviction for a lesser offense or 23 allow the applicant to replead to a disposition agreed upon by the 24 parties; or 25 (b) [Vacate the judgment and order a new trial wherein the defendant26enters] Permit the applicant to enter a plea to the same offense [in27order to permit the court to] and resentence the [defendant] applicant 28 in accordance with the amendatory provisions of subdivision one-a of 29 section 70.15 of the penal law. 30 9. Upon granting of a motion pursuant to paragraph j-1 of subdivision 31 one of this section, the court must vacate the judgment and permit the 32 applicant to enter a plea to the same offense in order to permit the 33 court to resentence the applicant to three hundred sixty-four days. 34 10. Notwithstanding any other provision of this section, the court 35 must order a hearing and address the merits of any claim for relief when 36 the applicant asserts that, in light of all available evidence, there 37 exists a colorable claim that he or she is actually innocent. When the 38 applicant raises an actual innocence claim based on, in whole or part, 39 new evidence of actual innocence, the court may not summarily deny the 40 motion on the ground that the applicant previously moved for relief 41 under this article. 42 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as 43 amended by chapter 1 of the laws of 1995, is amended to read as follows: 44 § 440.20 Motion to set aside sentence; by [defendant] applicant. 45 1. At any time after the entry of a judgment, the court in which the 46 judgment was entered may, upon motion of the [defendant] applicant, set 47 aside the sentence upon the ground that it was unauthorized, illegally 48 imposed, exceeded the maximum allowed by law, obtained or imposed in 49 violation of the defendant's constitutional rights, or was otherwise 50 invalid as a matter of law. Where the judgment includes a sentence of 51 death, the court may also set aside the sentence upon any of the grounds 52 set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of 53 section 440.10 as applied to a separate sentencing proceeding under 54 section 400.27, provided, however, that to the extent the ground or 55 grounds asserted include one or more of the aforesaid paragraphs of 56 subdivision one of section 440.10, the court must also apply [subdivi-S. 215 7 1sions] subdivision two [and three] of section 440.10, other than para- 2 graph [(d)] (c) of [subdivision two of] such [section] subdivision, in 3 determining the motion. In the event the court enters an order granting 4 a motion to set aside a sentence of death under this section, the court 5 must either direct a new sentencing proceeding in accordance with 6 section 400.27 or, to the extent that the defendant cannot be resen- 7 tenced to death consistent with the laws of this state or the constitu- 8 tion of this state or of the United States, resentence the defendant to 9 life imprisonment without parole or to a sentence of imprisonment for 10 the class A-I felony of murder in the first degree other than a sentence 11 of life imprisonment without parole. Upon granting the motion upon any 12 of the grounds set forth in the aforesaid paragraphs of subdivision one 13 of section 440.10 and setting aside the sentence, the court must afford 14 the people a reasonable period of time, which shall not be less than ten 15 days, to determine whether to take an appeal from the order setting 16 aside the sentence of death. The taking of an appeal by the people stays 17 the effectiveness of that portion of the court's order that directs a 18 new sentencing proceeding. 19 2. Notwithstanding the provisions of subdivision one, the court 20 [must] may deny such a motion when the ground or issue raised thereupon 21 was previously determined on the merits upon an appeal from the judgment 22 or sentence, unless since the time of such appellate determination there 23 has been a retroactively effective change in the law controlling such 24 issue. However, if all of the evidence currently before the court was 25 not duly considered previously by the court, the court shall not deny 26 the motion to vacate and instead shall order a hearing or grant the 27 motion. Even if the court has already considered all of the evidence 28 currently before the court, the court in the interest of justice and for 29 good cause shown may grant the motion if it is otherwise meritorious. 30 3. [Notwithstanding the provisions of subdivision one, the court may31deny such a motion when the ground or issue raised thereupon was previ-32ously determined on the merits upon a prior motion or proceeding in a33court of this state, other than an appeal from the judgment, or upon a34prior motion or proceeding in a federal court, unless since the time of35such determination there has been a retroactively effective change in36the law controlling such issue. Despite such determination, however,37the court in the interest of justice and for good cause shown, may in38its discretion grant the motion if it is otherwise meritorious.394.] An order setting aside a sentence pursuant to this section does 40 not affect the validity or status of the underlying conviction, and 41 after entering such an order the court must resentence the [defendant] 42 applicant in accordance with the law. 43 § 4. Section 440.30 of the criminal procedure law, subdivisions 1 and 44 1-a as amended by chapter 19 of the laws of 2012 and the opening para- 45 graph of paragraph (b) of subdivision 1 as amended by section 10 of part 46 LLL of chapter 59 of the laws of 2019, is amended to read as follows: 47 § 440.30 Motion to vacate judgment and to set aside sentence; procedure. 48 1. (a) [A] An application for a motion to vacate a judgment pursuant 49 to section 440.10 or 440.11 of this article and a motion to set aside a 50 sentence pursuant to section 440.20 of this article must be made in 51 writing by the applicant or their counsel to the judge or justice who 52 imposed the original sentence and upon reasonable notice to the people. 53 [Upon the motion, a defendant] If, at the time of such person's request 54 to apply for relief pursuant to this article, the original sentencing 55 judge or justice no longer works in the court in which the original 56 sentence was imposed, then the request shall be randomly assigned toS. 215 8 1 another judge or justice of the court in which the original sentence was 2 imposed. 3 (b) Upon the submission of an application for relief under this arti- 4 cle, unless the applicant is represented by counsel or affirmatively 5 states an intention to represent themselves pro se, the court shall 6 assign defense counsel if the applicant is indigent or otherwise quali- 7 fies for free representation in accordance with the provisions of subdi- 8 vision one of section seven hundred seventeen and subdivision four of 9 section seven hundred twenty-two of the county law and the related 10 provisions of article eighteen-A of such law. 11 (c) Upon making a determination as to assignment of counsel, the court 12 shall also promptly order the disclosure of discovery to the person 13 applying for relief and his or her counsel. The order of disclosure of 14 discovery shall include that: 15 (i) The people produce all items and information that relate to the 16 subject matter of the case and are in the possession, custody and 17 control of the prosecution or persons under their direction or control 18 and make available for inspection any physical evidence secured in 19 connection with the investigation or prosecution of the applicant, 20 including all evidence that would be discoverable pursuant to section 21 245.20 of this part; and 22 (ii) The applicant's prior trial and appellate counsel shall make 23 available to the applicant or his or her counsel their complete files 24 relating to the case; and 25 (iii) Court clerks and probation departments shall make available to 26 the applicant or his or her counsel the court files or probation records 27 pertaining to the case; and 28 (iv) Nothing in this section shall preclude the court from conducting 29 an in camera inspection of evidence and issuing a protective order 30 pursuant to section 245.70 of this part at the request of the prose- 31 cution or defense. 32 (v) The discovery order will require that the people and prior defense 33 counsel turn over all relevant discovery to the person applying for 34 relief or their counsel no later than thirty days from the issuance of 35 the court's discovery order. 36 (d) (i) An applicant who is in a position adequately to raise more 37 than one ground should raise every such ground upon which he or she 38 intends to challenge the judgment or sentence. If the motion is based 39 upon the existence or occurrence of facts, the motion papers [must] may 40 contain sworn allegations thereof, whether by the [defendant] applicant 41 or by another person or persons. Such sworn allegations may be based 42 upon personal knowledge of the affiant or upon information and belief, 43 provided that in the latter event the affiant must state the sources of 44 such information and the grounds of such belief. The [defendant] appli- 45 cant may further submit documentary evidence or information supporting 46 or tending to support the allegations of the moving papers. 47 (ii) The people may file with the court, and in such case must serve a 48 copy thereof upon the [defendant] applicant or his or her counsel, if 49 any, an answer denying or admitting any or all of the allegations of the 50 motion papers, and may further submit documentary evidence or informa- 51 tion refuting or tending to refute such allegations. 52 (iii) After all papers of both parties have been filed, and after all 53 documentary evidence or information, if any, has been submitted, the 54 court must consider the same for the purpose of ascertaining whether the 55 motion is determinable without a hearing to resolve questions of fact.S. 215 9 1 [(b) In conjunction with the filing or consideration of a motion to2vacate a judgment pursuant to section 440.10 of this article by a3defendant convicted after a trial, in cases where the court has ordered4an evidentiary hearing upon such motion, the court may order that the5people produce or make available for inspection property in its6possession, custody, or control that was secured in connection with the7investigation or prosecution of the defendant upon credible allegations8by the defendant and a finding by the court that such property, if9obtained, would be probative to the determination of defendant's actual10innocence, and that the request is reasonable. The court shall deny or11limit such a request upon a finding that such a request, if granted,12would threaten the integrity or chain of custody of property or the13integrity of the processes or functions of a laboratory conducting DNA14testing, pose a risk of harm, intimidation, embarrassment, reprisal, or15other substantially negative consequences to any person, undermine the16proper functions of law enforcement including the confidentiality of17informants, or on the basis of any other factor identified by the court18in the interests of justice or public safety. The court shall further19ensure that any property produced pursuant to this paragraph is subject20to a protective order, where appropriate. The court shall deny any21request made pursuant to this paragraph where:22(i) (1) the defendant's motion pursuant to section 440.10 of this23article does not seek to demonstrate his or her actual innocence of the24offense or offenses of which he or she was convicted that are the25subject of the motion, or (2) the defendant has not presented credible26allegations and the court has not found that such property, if obtained,27would be probative to the determination of the defendant's actual inno-28cence and that the request is reasonable;29(ii) the defendant has made his or her motion after five years from30the date of the judgment of conviction; provided, however, that this31limitation period shall be tolled for five years if the defendant is in32custody in connection with the conviction that is the subject of his or33her motion, and provided further that, notwithstanding such limitation34periods, the court may consider the motion if the defendant has shown:35(A) that he or she has been pursuing his or her rights diligently and36that some extraordinary circumstance prevented the timely filing of the37motion; (B) that the facts upon which the motion is predicated were38unknown to the defendant or his or her attorney and could not have been39ascertained by the exercise of due diligence prior to the expiration of40the statute of limitations; or (C) considering all circumstances of the41case including but not limited to evidence of the defendant's guilt, the42impact of granting or denying such motion upon public confidence in the43criminal justice system, or upon the safety or welfare of the community,44and the defendant's diligence in seeking to obtain the requested proper-45ty or related relief, the interests of justice would be served by46considering the motion;47(iii) the defendant is challenging a judgment convicting him or her of48an offense that is not a felony defined in section 10.00 of the penal49law; or50(iv) upon a finding by the court that the property requested in this51motion would be available through other means through reasonable efforts52by the defendant to obtain such property.531-a.] 2. (a) [(1)] (i) Where the [defendant's] applicant's motion 54 requests the performance of a forensic DNA test on specified evidence, 55 and upon the court's determination that any evidence containing deoxyri- 56 bonucleic acid ("DNA") was secured in connection with the trial or theS. 215 10 1 plea resulting in the judgment, the court shall grant the application 2 for forensic DNA testing of such evidence [upon its determination that3if a DNA test had been conducted on such evidence, and if the results4had been admitted in the trial resulting in the judgment, there exists a5reasonable probability that the verdict would have been more favorable6to the defendant.7(2) Where the defendant's motion for forensic DNA testing of specified8evidence is made following a plea of guilty and entry of judgment there-9on convicting him or her of: (A) a homicide offense defined in article10one hundred twenty-five of the penal law, any felony sex offense defined11in article one hundred thirty of the penal law, a violent felony offense12as defined in paragraph (a) of subdivision one of section 70.02 of the13penal law, or (B) any other felony offense to which he or she pled guil-14ty after being charged in an indictment or information in superior court15with one or more of the offenses listed in clause (A) of this subpara-16graph, then the court shall grant such a motion upon its determination17that evidence containing DNA was secured in connection with the investi-18gation or prosecution of the defendant, and if a DNA test had been19conducted on such evidence and the results had been known to the parties20prior to the entry of the defendant's plea and judgment thereon, there21exists a substantial probability that the evidence would have estab-22lished the defendant's actual innocence of the offense or offenses that23are the subject of the defendant's motion; provided, however, that:24(i) the court shall consider whether the defendant had the opportunity25to request such testing prior to entering a guilty plea, and, where it26finds that the defendant had such opportunity and unjustifiably failed27to do so, the court may deny such motion; and28(ii) a court shall deny the defendant's motion for forensic DNA test-29ing where the defendant has made his or her motion more than five years30after entry of the judgment of conviction; except that the limitation31period may be tolled if the defendant has shown: (A) that he or she has32been pursuing his or her rights diligently and that some extraordinary33circumstance prevented the timely filing of the motion for forensic DNA34testing; (B) that the facts upon which the motion is predicated were35unknown to the defendant or his or her attorney and could not have been36ascertained by the exercise of due diligence prior to the expiration of37this statute of limitations; or (C) considering all circumstances of the38case including but not limited to evidence of the defendant's guilt, the39impact of granting or denying such motion upon public confidence in the40criminal justice system, or upon the safety or welfare of the community,41and the defendant's diligence in seeking to obtain the requested proper-42ty or related relief, the interests of justice would be served by toll-43ing such limitation period]. 44 (ii) Where the applicant's motion for relief requests the performance 45 of any other testing of forensic evidence or any physical evidence 46 secured in the case, the judge shall grant the application for testing 47 of such evidence, unless there is no reasonable probability that the 48 testing of this evidence could result in a different or improved outcome 49 for the person applying for relief. 50 (b) (i) In conjunction with the filing of a motion under this subdivi- 51 sion, the court may direct the people to provide the [defendant] appli- 52 cant and his or her counsel with information in the possession of the 53 people concerning the current physical location of the specified 54 evidence and if the specified evidence no longer exists or the physical 55 location of the specified evidence is unknown, a representation to that 56 effect and information and documentary evidence in the possession of theS. 215 11 1 people concerning the last known physical location of such specified 2 evidence. 3 (ii) If there is a finding by the court that the specified evidence no 4 longer exists or the physical location of such specified evidence is 5 unknown, [such information in and of itself shall not be a factor from6which any inference unfavorable to the people may be drawn by the court7in deciding a motion under this section] the court shall grant the 8 applicant's motion and vacate the judgment. 9 (iii) The court, on motion of the [defendant] applicant, may also 10 issue a subpoena duces tecum directing a public or private hospital, 11 laboratory or other entity to produce such specified evidence in its 12 possession and/or information and documentary evidence in its possession 13 concerning the location and status of such specified evidence. 14 (c) In response to a motion under this paragraph, upon notice to the 15 parties and to the entity required to perform the search the court may 16 order an entity that has access to the combined DNA index system 17 ("CODIS") or its successor system to compare a DNA profile obtained from 18 probative biological material gathered in connection with the investi- 19 gation or prosecution of the [defendant] applicant against DNA databanks 20 by keyboard searches, or a similar method that does not involve upload- 21 ing, upon a court's determination that (1) such profile complies with 22 federal bureau of investigation or state requirements, whichever are 23 applicable and as such requirements are applied to law enforcement agen- 24 cies seeking such a comparison, and that the data meet state DNA index 25 system and/or national DNA index system criteria as such criteria are 26 applied to law enforcement agencies seeking such a comparison and (2) if 27 such comparison had been conducted, [and if the results had been admit-28ted in the trial resulting in the judgment,] a reasonable probability 29 exists that the verdict would have been more favorable to the [defend-30ant, or in a case involving a plea of guilty, if the results had been31available to the defendant prior to the plea, a reasonable probability32exists that the conviction would not have resulted] applicant. For 33 purposes of this subdivision, a "keyboard search" shall mean a search of 34 a DNA profile against the databank in which the profile that is searched 35 is not uploaded to or maintained in the databank. 36 [2. If it appears by conceded or uncontradicted allegations of the37moving papers or of the answer, or by unquestionable documentary proof,38that there are circumstances which require denial thereof pursuant to39subdivision two of section 440.10 or subdivision two of section 440.20,40the court must summarily deny the motion. If it appears that there are41circumstances authorizing, though not requiring, denial thereof pursuant42to subdivision three of section 440.10 or subdivision three of section43440.20, the court may in its discretion either (a) summarily deny the44motion, or (b) proceed to consider the merits thereof.] 45 3. Upon considering the merits of the motion, the court must grant it 46 without conducting a hearing and vacate the judgment or set aside the 47 sentence, as the case may be, if: 48 (a) The moving papers allege a ground constituting legal basis for the 49 motion; and 50 (b) Such ground, if based upon the existence or occurrence of facts, 51 is supported by sworn allegations thereof; and 52 (c) The sworn allegations of fact essential to support the motion are 53 either conceded by the people to be true or are conclusively substanti- 54 ated by unquestionable documentary proof. 55 4. Upon considering the merits of the motion, the court may deny it 56 without conducting a hearing if:S. 215 12 1 (a) The moving papers do not allege any ground constituting legal 2 basis for the motion; or 3 (b) [The motion is based upon the existence or occurrence of facts and4the moving papers do not contain sworn allegations substantiating or5tending to substantiate all the essential facts, as required by subdivi-6sion one; or7(c)] An allegation of fact essential to support the motion is conclu- 8 sively refuted by unquestionable documentary proof; or 9 [(d)] (c) An allegation of fact essential to support the motion (i) is 10 contradicted by a court record or other official document[, or is made11solely by the defendant and is unsupported by any other affidavit or12evidence,] and (ii) under these and all the other circumstances attend- 13 ing the case, there is no reasonable possibility that such allegation is 14 true. 15 5. If the court does not determine the motion pursuant to subdivisions 16 two, three or four, it must conduct a hearing and make findings of fact 17 essential to the determination thereof. The [defendant] applicant has a 18 right to be present at such hearing but may waive such right in writing. 19 If he or she does not so waive it and if he or she is confined in a 20 prison or other institution of this state, the court must cause him or 21 her to be produced at such hearing. 22 6. At such a hearing, the [defendant] applicant has the burden of 23 proving by a preponderance of the evidence every fact essential to 24 support the motion. At the hearing, defense counsel shall receive a 25 daily copy of the hearing minutes. 26 7. Regardless of whether a hearing was conducted, the court, upon 27 determining the motion, must set forth on the record its findings of 28 fact, its conclusions of law and the reasons for its determination. 29 § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as 30 amended by chapter 671 of the laws of 1971 and as renumbered by chapter 31 516 of the laws of 1986, is amended to read as follows: 32 4. An order, entered pursuant to [section 440.40, setting aside a33sentence other than one of death, upon motion of the People] article 34 four hundred forty of this title, shall be authorized to an intermediate 35 appellate court as a matter of right. 36 § 6. Subdivision 5 of section 450.10 of the criminal procedure law is 37 REPEALED. 38 § 7. Severability. If any provision of this act, or any application of 39 any provision of this act, is held to be invalid, that shall not affect 40 the validity or effectiveness of any other provision of this act, or of 41 any other application of any provision of this act, which can be given 42 effect without that provision or application; and to that end, the 43 provisions and applications of this act are severable. 44 § 8. This act shall take effect on the sixtieth day after it shall 45 have become a law; provided, however, that paragraphs (b) and (c) of 46 subdivision 1 of section 440.30 of the criminal procedure law as added 47 by section four of this act shall take effect one year after it shall 48 have become a law.
