Bill Text: NY A02878 | 2023-2024 | General Assembly | Amended

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Bill Title: Relates to motions to vacate judgment; authorizes filing motions to vacate judgment for a conviction that was subsequently decriminalized; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea.

Spectrum: Partisan Bill (Democrat 51-0)

Status: (Engrossed) 2023-06-20 - substituted by s7548 [A02878 Detail]

Download: New_York-2023-A02878-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         2878--A
                                                                 Cal. No. 32

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 30, 2023
                                       ___________

        Introduced by M. of A. AUBRY, KIM, TAYLOR, FORREST, BURGOS, REYES, HEVE-
          SI,  FAHY,  O'DONNELL,  MITAYNES,  ANDERSON,  MAMDANI, JACKSON, CLARK,
          SIMON,  GONZALEZ-ROJAS,  SEAWRIGHT,   CARROLL,   GALLAGHER,   DARLING,
          BURDICK,  CRUZ,  EPSTEIN, HUNTER, MEEKS, WEPRIN, KELLES, L. ROSENTHAL,
          OTIS, COOK, DINOWITZ, SEPTIMO, GIBBS, DICKENS, GLICK, DAVILA, HYNDMAN,
          PRETLOW, RAMOS, TAPIA, LUNSFORD, ARDILA, SIMONE, RAGA, SHIMSKY,  ALVA-
          REZ, DE LOS SANTOS, BORES, LEVENBERG, WALKER -- read once and referred
          to  the  Committee  on Codes -- advanced to a third reading, passed by
          Assembly and delivered to the Senate, recalled from the  Senate,  vote
          reconsidered,  bill amended, ordered reprinted, retaining its place on
          the order of third reading

        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  conviction  upon  the ground that the applicant was
    10  convicted of any offense in the state of New York which has been  subse-
    11  quently decriminalized and is thus a legal nullity.
    12    2.  If  the  court grants a motion under this section, it shall vacate
    13  the conviction on the merits, dismiss the  accusatory  instrument,  seal
    14  the conviction, and may take such additional action as is appropriate in
    15  the circumstances.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00806-05-3
        A. 2878--A                          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-
    15  ant] 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  adduced at a trial] Evidence that was likely
    22  relied upon by a fact finder resulting in the judgment at trial or  that
    23  was  likely relied upon by any party as a basis for a plea agreement was
    24  false [and was, prior to the entry of the judgment, known by the  prose-
    25  cutor or by the court to be false]; or
    26    (d) [Material evidence adduced by the people at a trial] Evidence that
    27  was  likely  relied  upon  by a fact finder resulting in the judgment at
    28  trial or that was likely relied upon by any party as a basis for a  plea
    29  agreement  was  procured  in  violation of the [defendant's] applicant's
    30  rights under the constitution of this state or of the United States; or
    31    (e) During the proceedings resulting in the judgment, the  [defendant]
    32  applicant,  by  reason  of  mental  disease  or defect, was incapable of
    33  understanding or participating in such proceedings; or
    34    (f) Improper [and prejudicial] conduct not  appearing  in  the  record
    35  occurred  during  a trial resulting in the judgment which conduct, if it
    36  had appeared in the  record,  would  have  [required]  made  possible  a
    37  reversal of the judgment upon an appeal therefrom; or
    38    (g)  New  evidence  has been discovered [since the entry of a judgment
    39  based upon a verdict of guilty after trial, which could  not  have  been
    40  produced  by  the  defendant at the trial even with due diligence on his
    41  part and which] or become available that,  when  viewed  alone  or  with
    42  other evidence, is of such character as to create a reasonable probabil-
    43  ity  that  had  such  evidence  been received at the trial or discovered
    44  prior to trial or plea agreement that the verdict  or  plea  would  have
    45  been more favorable to the [defendant; provided that a motion based upon
    46  such  ground must be made with due diligence after the discovery of such
    47  alleged new evidence] applicant. Types of new  evidence  shall  include,
    48  but not be limited to newly available forensic evidence or evidence that
    49  has  either  been  repudiated  by the expert who originally provided the
    50  opinion at a hearing or trial or  that  has  been  undermined  by  later
    51  scientific research or technological advances; or
    52    (g-1)  [Forensic  DNA]  In  cases  involving  the  forensic testing of
    53  evidence performed since the entry of a judgment, [(1) in the case of  a
    54  defendant  convicted  after a guilty plea, the court has determined that
    55  the defendant  has  demonstrated  a  substantial  probability  that  the
    56  defendant  was  actually  innocent of the offense of which he or she was
        A. 2878--A                          3

     1  convicted, or (2) in the case of a defendant convicted after  a  trial,]
     2  the court has determined that there exists a reasonable probability that
     3  the verdict or plea offer would have been more favorable to the [defend-
     4  ant] applicant, or the applicant would have rejected the plea offer.
     5    (h)  The judgment was obtained in violation of a right of the [defend-
     6  ant] applicant under the constitution of this state  or  of  the  United
     7  States,  including, but not limited to, a judgment entered, whether upon
     8  trial or guilty plea, against an applicant who is actually innocent.  An
     9  applicant is actually innocent where the applicant proves by  a  prepon-
    10  derance of the evidence that no reasonable jury of the applicant's peers
    11  would have found the applicant guilty beyond a reasonable doubt; or
    12    (i)  The  judgment is a conviction where the [defendant's] applicant's
    13  participation in the offense was a result of having been a victim of sex
    14  trafficking under section 230.34 of the penal law, sex trafficking of  a
    15  child  under  section 230.34-a of the penal law, labor trafficking under
    16  section 135.35 of the penal  law,  aggravated  labor  trafficking  under
    17  section  135.37  of the penal law, compelling prostitution under section
    18  230.33 of the penal law, or trafficking in persons under the Trafficking
    19  Victims Protection Act (United  States  Code,  title  22,  chapter  78);
    20  provided that
    21    (i)  official documentation of the [defendant's] applicant's status as
    22  a victim of sex trafficking, labor trafficking, aggravated  labor  traf-
    23  ficking,  compelling prostitution, or trafficking in persons at the time
    24  of the offense from a federal, state or local  government  agency  shall
    25  create a presumption that the [defendant's] applicant's participation in
    26  the  offense  was  a  result of having been a victim of sex trafficking,
    27  labor trafficking, aggravated labor trafficking, compelling prostitution
    28  or trafficking in persons, but shall not  be  required  for  granting  a
    29  motion under this paragraph;
    30    (ii) a motion under this paragraph, and all pertinent papers and docu-
    31  ments, shall be confidential and may not be made available to any person
    32  or  public  or  private [entity] agency except [where] when specifically
    33  authorized by the court; and
    34    (iii) when a motion is filed under this paragraph, the court may, upon
    35  the consent of the petitioner and all of the  involved  state  [and]  or
    36  local  prosecutorial agencies [that prosecuted each matter], consolidate
    37  into one proceeding a motion to vacate judgments imposed by distinct  or
    38  multiple criminal courts; or
    39    (j)  The  judgment is a conviction for [a class A or unclassified] any
    40  misdemeanor entered prior to the effective date of  this  paragraph  and
    41  satisfies  the  ground  prescribed in paragraph (h) of this subdivision.
    42  There shall be a rebuttable presumption that a  conviction  by  plea  to
    43  such  an  offense  was  not knowing, voluntary and intelligent, based on
    44  ongoing collateral consequences, including  potential  or  actual  immi-
    45  gration consequences, and there shall be a rebuttable presumption that a
    46  conviction  by  verdict  constitutes  cruel and unusual punishment under
    47  section five of article one of the  state  constitution  based  on  such
    48  consequences; or
    49    (k)  The  judgment occurred prior to the effective date of the laws of
    50  two thousand [twenty-one] twenty-three that amended this  paragraph  and
    51  is  a  conviction  for an offense as defined in [subparagraphs] subpara-
    52  graph (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three  of
    53  section  160.50  of this part, or a misdemeanor under the former article
    54  two hundred twenty-one of the penal law, in which case the  court  shall
    55  presume  that  a  conviction by plea for the aforementioned offenses was
    56  not knowing, voluntary and intelligent  if  it  has  severe  or  ongoing
        A. 2878--A                          4

     1  consequences,  including  but  not  limited to potential or actual immi-
     2  gration consequences, and shall presume that a conviction by verdict for
     3  the aforementioned offenses constitutes  cruel  and  unusual  punishment
     4  under  section  five  of article one of the state constitution, based on
     5  those consequences. The people may rebut these presumptions[.]; or
     6    (l) Any offense in the state of New York that an  intermediate  appel-
     7  late court, court of appeals, or United States federal court with juris-
     8  diction  over  New  York state law issues has deemed in violation of the
     9  constitution of this state or of the United States, or any  other  right
    10  under state or federal law.
    11    2. Notwithstanding the provisions of subdivision one, the court [must]
    12  may deny a motion to vacate a judgment when:
    13    (a)  The  ground or issue raised upon the motion was previously deter-
    14  mined on the merits upon an appeal from the judgment, unless  since  the
    15  time  of  such  appellate  determination  there has been a retroactively
    16  effective change in the law controlling such issue. However, if  all  of
    17  the  evidence  currently before the court was not duly considered previ-
    18  ously by the court, the court shall grant the motion or order the  hear-
    19  ing; or
    20    (b)  The judgment is, at the time of the motion, appealable or pending
    21  on appeal, and sufficient facts appear on the record with respect to the
    22  ground or issue raised upon the motion to permit adequate review thereof
    23  upon such an appeal unless the issue raised upon such motion is ineffec-
    24  tive assistance of counsel. This paragraph shall not apply to  a  motion
    25  under paragraph (i), (j), (k) or (l) of subdivision one of this section;
    26  or
    27    (c) [Although sufficient facts appear on the record of the proceedings
    28  underlying  the  judgment to have permitted, upon appeal from such judg-
    29  ment, adequate review of the ground or issue raised upon the motion,  no
    30  such appellate review or determination occurred owing to the defendant's
    31  unjustifiable failure to take or perfect an appeal during the prescribed
    32  period  or  to  his or her unjustifiable failure to raise such ground or
    33  issue upon an appeal actually perfected by him or her unless  the  issue
    34  raised upon such motion is ineffective assistance of counsel; or
    35    (d)]  The ground or issue raised relates solely to the validity of the
    36  sentence and not to the validity of the conviction. In  such  case,  the
    37  court shall deem the motion to have been made pursuant to section 440.20
    38  of this article.
    39    [3.  Notwithstanding  the provisions of subdivision one, the court may
    40  deny a motion to vacate a judgment when:
    41    (a) Although facts in support of the ground or issue raised  upon  the
    42  motion  could with due diligence by the defendant have readily been made
    43  to appear on the record in a manner providing adequate basis for  review
    44  of  such ground or issue upon an appeal from the judgment, the defendant
    45  unjustifiably failed to adduce such matter prior  to  sentence  and  the
    46  ground or issue in question was not subsequently determined upon appeal.
    47  This  paragraph does not apply to a motion based upon deprivation of the
    48  right to counsel at the trial or upon failure  of  the  trial  court  to
    49  advise  the  defendant of such right, or to a motion under paragraph (i)
    50  of subdivision one of this section; or
    51    (b) The ground or issue raised upon the motion was  previously  deter-
    52  mined on the merits upon a prior motion or proceeding in a court of this
    53  state,  other  than  an  appeal  from  the judgment, or upon a motion or
    54  proceeding in a federal court; unless since the time  of  such  determi-
    55  nation  there  has  been  a  retroactively  effective  change in the law
    56  controlling such issue; or
        A. 2878--A                          5

     1    (c) Upon a previous motion made pursuant to this section, the  defend-
     2  ant was in a position adequately to raise the ground or issue underlying
     3  the present motion but did not do so.]
     4    (d)  Although  the  court may deny the motion under any of the circum-
     5  stances specified in this subdivision, in the interest  of  justice  and
     6  for  good cause shown it may in its discretion grant the motion if it is
     7  otherwise meritorious and vacate the judgment.
     8    [4.] 3. If the court grants the motion, it must, except as provided in
     9  subdivision [five] four or [six] five of this section, vacate the  judg-
    10  ment, and must either:
    11    (a) dismiss and seal the accusatory instrument, or
    12    (b) order a new trial, or
    13    (c) take such other action as is appropriate in the circumstances.
    14    [5.]  4.  Upon  granting  the motion upon the ground, as prescribed in
    15  paragraph (g) of subdivision one, that newly discovered evidence creates
    16  a probability that had such evidence been  received  at  the  trial  the
    17  verdict  would  have been more favorable to the [defendant] applicant in
    18  that the conviction would have been for a lesser offense  than  the  one
    19  contained in the verdict, the court may either:
    20    (a) Vacate the judgment and order a new trial; or
    21    (b) With the consent of the people, modify the judgment by reducing it
    22  to  one  of  conviction for such lesser offense. In such case, the court
    23  must re-sentence the [defendant] applicant accordingly.
    24    [6.] 5. If the court grants a motion under [paragraph  (i)  or]  para-
    25  graph  [(k)]  (h),  (i),  (j),  (k)  or  (l)  of subdivision one of this
    26  section, it must vacate the judgment [and] on the  merits,  dismiss  the
    27  accusatory  instrument,  seal the judgment, and may take such additional
    28  action as is appropriate in the circumstances. [In the case of a  motion
    29  granted  under  paragraph  (i)  of  subdivision one of this section, the
    30  court must vacate the judgment on the  merits  because  the  defendant's
    31  participation  in  the  offense  was a result of having been a victim of
    32  trafficking.
    33    7.] 6. Upon a new trial resulting from an order  vacating  a  judgment
    34  pursuant  to  this  section, the indictment is deemed to contain all the
    35  counts and to charge all the offenses which it contained and charged  at
    36  the  time  the  previous  trial was commenced, regardless of whether any
    37  count was dismissed by the court in the course of such trial, except (a)
    38  those upon or of which the [defendant] applicant was acquitted or deemed
    39  to have been acquitted, and (b) those dismissed by  the  order  vacating
    40  the  judgment,  and (c) those previously dismissed by an appellate court
    41  upon an appeal from the judgment, or by any court upon a previous  post-
    42  judgment motion.
    43    [8.]  7.  Upon  an order which vacates a judgment based upon a plea of
    44  guilty to an accusatory instrument or a part thereof, but which does not
    45  dismiss the entire accusatory instrument, the criminal action is, in the
    46  absence of an  express  direction  to  the  contrary,  restored  to  its
    47  [prepleading]  pre-pleading  status  and  the  accusatory  instrument is
    48  deemed to contain all the counts and to charge all the offenses which it
    49  contained and charged at the time of the entry of the plea, except those
    50  subsequently dismissed under circumstances specified in  paragraphs  (b)
    51  and  (c)  of subdivision six.   Where the plea of guilty was entered and
    52  accepted, pursuant to subdivision three  of  section  220.30,  upon  the
    53  condition  that  it  constituted  a complete disposition not only of the
    54  accusatory instrument underlying the judgment vacated but also of one or
    55  more other accusatory instruments against the [defendant] applicant then
    56  pending in the same court, the order  of  vacation  completely  restores
        A. 2878--A                          6

     1  such other accusatory instruments; and such is the case even though such
     2  order dismisses the main accusatory instrument underlying the judgment.
     3    [9.]  8. Upon granting of a motion pursuant to paragraph (j) of subdi-
     4  vision one of this section, the court may either:
     5    (a) With the consent of the people, vacate the judgment or modify  the
     6  judgment by reducing it to one of conviction for a lesser offense; or
     7    (b)  Vacate the judgment and order a new trial wherein the [defendant]
     8  applicant enters a plea to the same offense in order to permit the court
     9  to resentence the [defendant] applicant in accordance with the amendato-
    10  ry provisions of subdivision one-a of section 70.15 of the penal law.
    11    § 3. Section 440.20 of the criminal procedure law,  subdivision  1  as
    12  amended by chapter 1 of the laws of 1995, is amended to read as follows:
    13  § 440.20 Motion to set aside sentence; by [defendant] applicant.
    14    1.  At  any time after the entry of a judgment, the court in which the
    15  judgment was entered may, upon motion of the [defendant] applicant,  set
    16  aside  the  sentence upon the ground that it was unauthorized, illegally
    17  imposed, exceeded the maximum allowed by law,  obtained  or  imposed  in
    18  violation  of  the  defendant's  constitutional rights, or was otherwise
    19  invalid as a matter of law.  Where the judgment includes a  sentence  of
    20  death, the court may also set aside the sentence upon any of the grounds
    21  set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
    22  section 440.10 as applied to  a  separate  sentencing  proceeding  under
    23  section  400.27,  provided,  however,  that  to the extent the ground or
    24  grounds asserted include one or more  of  the  aforesaid  paragraphs  of
    25  subdivision  one  of section 440.10, the court must also apply [subdivi-
    26  sions] subdivision two [and three] of section 440.10, other  than  para-
    27  graph  [(d)]  (c) of [subdivision two of] such [section] subdivision, in
    28  determining the motion. In the event the court enters an order  granting
    29  a  motion to set aside a sentence of death under this section, the court
    30  must either direct  a  new  sentencing  proceeding  in  accordance  with
    31  section  400.27  or,  to  the extent that the defendant cannot be resen-
    32  tenced to death consistent with the laws of this state or the  constitu-
    33  tion  of this state or of the United States, resentence the defendant to
    34  life imprisonment without parole or to a sentence  of  imprisonment  for
    35  the class A-I felony of murder in the first degree other than a sentence
    36  of  life  imprisonment without parole. Upon granting the motion upon any
    37  of the grounds set forth in the aforesaid paragraphs of subdivision  one
    38  of  section 440.10 and setting aside the sentence, the court must afford
    39  the people a reasonable period of time, which shall not be less than ten
    40  days, to determine whether to take an  appeal  from  the  order  setting
    41  aside the sentence of death. The taking of an appeal by the people stays
    42  the  effectiveness  of  that portion of the court's order that directs a
    43  new sentencing proceeding.
    44    2.   Notwithstanding the provisions  of  subdivision  one,  the  court
    45  [must]  may deny such a motion when the ground or issue raised thereupon
    46  was previously determined on the merits upon an appeal from the judgment
    47  or sentence, unless since the time of such appellate determination there
    48  has been a retroactively effective change in the  law  controlling  such
    49  issue.    However, if all of the evidence currently before the court was
    50  not duly considered previously by the court, the court  shall  not  deny
    51  the  motion  to  vacate  and  instead shall order a hearing or grant the
    52  motion. Even if the court has already considered  all  of  the  evidence
    53  currently before the court, the court in the interest of justice and for
    54  good cause shown may grant the motion if it is otherwise meritorious.
    55    3.   [Notwithstanding the provisions of subdivision one, the court may
    56  deny such a motion when the ground or issue raised thereupon was  previ-
        A. 2878--A                          7

     1  ously  determined  on  the merits upon a prior motion or proceeding in a
     2  court of this state, other than an appeal from the judgment, or  upon  a
     3  prior  motion or proceeding in a federal court, unless since the time of
     4  such  determination  there  has been a retroactively effective change in
     5  the law controlling such issue.   Despite such  determination,  however,
     6  the  court  in  the interest of justice and for good cause shown, may in
     7  its discretion grant the motion if it is otherwise meritorious.
     8    4.]  An order setting aside a sentence pursuant to this  section  does
     9  not  affect  the  validity  or  status of the underlying conviction, and
    10  after entering such an order the court must resentence  the  [defendant]
    11  applicant in accordance with the law.
    12    §  4. Section 440.30 of the criminal procedure law, subdivisions 1 and
    13  1-a as amended by chapter 19 of the laws of 2012 and the  opening  para-
    14  graph of paragraph (b) of subdivision 1 as amended by section 10 of part
    15  LLL of chapter 59 of the laws of 2019, is amended to read as follows:
    16  § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
    17    1.  [(a)  A]  An application for assignment of counsel for a motion to
    18  vacate a judgment pursuant to section 440.10 or 440.11 of  this  article
    19  and  a motion to set aside a sentence pursuant to section 440.20 of this
    20  article must be made in writing by a pro se applicant to  the  judge  or
    21  justice  who imposed the original sentence and upon reasonable notice to
    22  the people. [Upon the motion, a defendant]
    23    (a) The court shall assign defense counsel in cases where there  is  a
    24  colorable  claim of relief according to this article, in accordance with
    25  section seven hundred twenty-two of the county law. For the  purpose  of
    26  this  section,  a  colorable  claim  is  a  claim that, taking the facts
    27  alleged in the application as true and viewed in a light most  favorable
    28  to the applicant, would entitle the applicant to relief.
    29    (b)  If  the judge decides not to assign counsel, they shall state the
    30  reasons for denying the request for assignment of counsel in writing.
    31    (c) If, at the time of such  applicant's  request  for  assignment  of
    32  counsel, the original sentencing judge or justice no longer works in the
    33  court in which the original sentence was imposed, then the request shall
    34  be  randomly  assigned to another judge or justice of the court in which
    35  the original sentence was imposed.
    36    (d) Applicants already represented by counsel, either appointed pursu-
    37  ant to section seven hundred twenty-two of the county law  or  otherwise
    38  retained,  are  not  required  to  file an application for assignment of
    39  counsel.
    40    2. Upon the request of the applicant or his or  her  defense  counsel,
    41  the court shall order:
    42    (a)  The  people  to  make  available  a copy of its file of the case,
    43  including any physical evidence in the  people's  possession  and  grand
    44  jury minutes;
    45    (b)  The applicant's prior trial and appellate defense counsel to make
    46  available their complete files relating to the case;
    47    (c) Court clerks and probation departments to make available the court
    48  files or probation records relating to the case; and
    49    (d) Any law enforcement agency involved with the case to turn over its
    50  files  of  the  case,  including  police  reports,  witness  statements,
    51  evidence  vouchers,  or  any  other  relevant records or evidence at its
    52  disposal.
    53    (e) The court shall further ensure that any disclosure of evidence  or
    54  property  ordered  pursuant  to  this  subdivision  may  be subject to a
    55  protective order as defined in section 245.70 of this part, where appro-
    56  priate.
        A. 2878--A                          8

     1    (f) Nothing in this section shall preclude the court  from  conducting
     2  an  in  camera  inspection  of  evidence  and issuing a protective order
     3  pursuant to section 245.70 of this part at the  request  of  the  prose-
     4  cution or defense.
     5    3. (a) An applicant who is in a position adequately to raise more than
     6  one  ground  should raise every such ground upon which he or she intends
     7  to challenge the judgment or sentence. If the motion is based  upon  the
     8  existence  or  occurrence of facts, the motion papers [must] may contain
     9  sworn allegations thereof, whether by the [defendant]  applicant  or  by
    10  another  person  or  persons.  Such  sworn allegations may be based upon
    11  personal knowledge of  the  affiant  or  upon  information  and  belief,
    12  provided  that in the latter event the affiant must state the sources of
    13  such information and the grounds of such belief. The [defendant]  appli-
    14  cant  may  further submit documentary evidence or information supporting
    15  or tending to support the allegations of the moving papers.
    16    (b) The people may file with the court, and in such case must serve  a
    17  copy  thereof  upon  the [defendant] applicant or his or her counsel, if
    18  any, an answer denying or admitting any or all of the allegations of the
    19  motion papers, and may further submit documentary evidence  or  informa-
    20  tion refuting or tending to refute such allegations.
    21    (c)  After  all  papers of both parties have been filed, and after all
    22  documentary evidence or information, if any,  has  been  submitted,  the
    23  court must consider the same for the purpose of ascertaining whether the
    24  motion is determinable without a hearing to resolve questions of fact.
    25    [(b)  In  conjunction  with the filing or consideration of a motion to
    26  vacate a judgment pursuant to  section  440.10  of  this  article  by  a
    27  defendant  convicted after a trial, in cases where the court has ordered
    28  an evidentiary hearing upon such motion, the court may  order  that  the
    29  people  produce  or  make  available  for  inspection  property  in  its
    30  possession, custody, or control that was secured in connection with  the
    31  investigation  or prosecution of the defendant upon credible allegations
    32  by the defendant and a finding by  the  court  that  such  property,  if
    33  obtained,  would be probative to the determination of defendant's actual
    34  innocence, and that the request is reasonable. The court shall  deny  or
    35  limit  such  a  request  upon a finding that such a request, if granted,
    36  would threaten the integrity or chain of  custody  of  property  or  the
    37  integrity  of  the processes or functions of a laboratory conducting DNA
    38  testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
    39  other  substantially  negative consequences to any person, undermine the
    40  proper functions of law enforcement  including  the  confidentiality  of
    41  informants,  or on the basis of any other factor identified by the court
    42  in the interests of justice or public safety. The  court  shall  further
    43  ensure  that any property produced pursuant to this paragraph is subject
    44  to a protective order, where  appropriate.  The  court  shall  deny  any
    45  request made pursuant to this paragraph where:
    46    (i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
    47  article does not seek to demonstrate his or her actual innocence of  the
    48  offense  or  offenses  of  which  he  or  she was convicted that are the
    49  subject of the motion, or (2) the defendant has not  presented  credible
    50  allegations and the court has not found that such property, if obtained,
    51  would  be probative to the determination of the defendant's actual inno-
    52  cence and that the request is reasonable;
    53    (ii) the defendant has made his or her motion after  five  years  from
    54  the  date  of  the  judgment of conviction; provided, however, that this
    55  limitation period shall be tolled for five years if the defendant is  in
    56  custody  in connection with the conviction that is the subject of his or
        A. 2878--A                          9

     1  her motion, and provided further that, notwithstanding  such  limitation
     2  periods,  the  court may consider the motion if the defendant has shown:
     3  (A) that he or she has been pursuing his or her  rights  diligently  and
     4  that  some extraordinary circumstance prevented the timely filing of the
     5  motion; (B) that the facts upon which  the  motion  is  predicated  were
     6  unknown  to the defendant or his or her attorney and could not have been
     7  ascertained by the exercise of due diligence prior to the expiration  of
     8  the  statute of limitations; or (C) considering all circumstances of the
     9  case including but not limited to evidence of the defendant's guilt, the
    10  impact of granting or denying such motion upon public confidence in  the
    11  criminal justice system, or upon the safety or welfare of the community,
    12  and the defendant's diligence in seeking to obtain the requested proper-
    13  ty  or  related  relief,  the  interests  of  justice would be served by
    14  considering the motion;
    15    (iii) the defendant is challenging a judgment convicting him or her of
    16  an offense that is not a felony defined in section 10.00  of  the  penal
    17  law; or
    18    (iv)  upon  a finding by the court that the property requested in this
    19  motion would be available through other means through reasonable efforts
    20  by the defendant to obtain such property.
    21    1-a.] 4. (a) [(1)] Where the [defendant's] applicant's motion requests
    22  the performance of a forensic DNA test on specified evidence,  and  upon
    23  the  court's determination that any evidence containing deoxyribonucleic
    24  acid ("DNA") was secured in  connection  with  the  trial  or  the  plea
    25  resulting  in  the  judgment,  the court shall grant the application for
    26  forensic DNA testing of such evidence upon its determination that [if a]
    27  had the DNA test [had] results been [conducted on such evidence, and  if
    28  the  results  had been admitted in the trial resulting in the judgment,]
    29  available at the time of trial or plea, there [exists] is  a  reasonable
    30  probability  that  the  verdict  would  have  been more favorable to the
    31  [defendant] applicant.
    32    [(2) Where the defendant's motion for forensic DNA testing  of  speci-
    33  fied  evidence  is made following a plea of guilty and entry of judgment
    34  thereon convicting him or her of: (A)  a  homicide  offense  defined  in
    35  article one hundred twenty-five of the penal law, any felony sex offense
    36  defined in article one hundred thirty of the penal law, a violent felony
    37  offense  as defined in paragraph (a) of subdivision one of section 70.02
    38  of the penal law, or (B) any other felony offense to  which  he  or  she
    39  pled guilty after being charged in an indictment or information in supe-
    40  rior court with one or more of the offenses listed in clause (A) of this
    41  subparagraph, then the court shall grant such a motion upon its determi-
    42  nation  that  evidence containing DNA was secured in connection with the
    43  investigation or prosecution of the defendant, and if  a  DNA  test  had
    44  been  conducted  on  such evidence and the results had been known to the
    45  parties prior to the entry of the defendant's plea and judgment thereon,
    46  there exists a substantial probability  that  the  evidence  would  have
    47  established  the defendant's actual innocence of the offense or offenses
    48  that are the subject of the defendant's motion; provided, however, that:
    49    (i) the court shall consider whether the defendant had the opportunity
    50  to request such testing prior to entering a guilty plea, and,  where  it
    51  finds  that  the defendant had such opportunity and unjustifiably failed
    52  to do so, the court may deny such motion; and
    53    (ii) a court shall deny the defendant's motion for forensic DNA  test-
    54  ing  where the defendant has made his or her motion more than five years
    55  after entry of the judgment of conviction; except  that  the  limitation
    56  period  may be tolled if the defendant has shown: (A) that he or she has
        A. 2878--A                         10

     1  been pursuing his or her rights diligently and that  some  extraordinary
     2  circumstance  prevented the timely filing of the motion for forensic DNA
     3  testing; (B) that the facts upon which the  motion  is  predicated  were
     4  unknown  to the defendant or his or her attorney and could not have been
     5  ascertained by the exercise of due diligence prior to the expiration  of
     6  this statute of limitations; or (C) considering all circumstances of the
     7  case including but not limited to evidence of the defendant's guilt, the
     8  impact  of granting or denying such motion upon public confidence in the
     9  criminal justice system, or upon the safety or welfare of the community,
    10  and the defendant's diligence in seeking to obtain the requested proper-
    11  ty or related relief, the interests of justice would be served by  toll-
    12  ing such limitation period.]
    13    (b)  Where  the applicant's motion for relief requests the performance
    14  of any other testing of  forensic  evidence  or  any  physical  evidence
    15  secured  in  the case, the court shall grant the application for testing
    16  of such evidence, upon its determination that had the results of testing
    17  of forensic or other physical evidence been available  at  the  time  of
    18  trial  or plea, there is a reasonable probability that the verdict would
    19  have been more favorable to the applicant.
    20    (c) (i) In conjunction with the filing of a motion under this subdivi-
    21  sion, the court may direct the people to provide the [defendant]  appli-
    22  cant  and  his  or her counsel with information in the possession of the
    23  people  concerning  the  current  physical  location  of  the  specified
    24  evidence  and if the specified evidence no longer exists or the physical
    25  location of the specified evidence is unknown, a representation to  that
    26  effect and information and documentary evidence in the possession of the
    27  people  concerning  the  last  known physical location of such specified
    28  evidence.
    29    (ii) If there is a finding by the court that the specified evidence no
    30  longer exists or the physical location of  such  specified  evidence  is
    31  unknown,  [such  information in and of itself shall not be a factor from
    32  which any inference unfavorable to the people may be drawn by the  court
    33  in  deciding a motion under this section] the court may grant the appli-
    34  cant's motion and vacate the judgment upon a finding by the  court  that
    35  such evidence is unavailable due to malfeasance or neglect.
    36    (iii)  The  court,  on  motion  of the [defendant] applicant, may also
    37  issue a subpoena duces tecum directing a  public  or  private  hospital,
    38  laboratory  or  other  entity  to produce such specified evidence in its
    39  possession and/or information and documentary evidence in its possession
    40  concerning the location and status of such specified evidence.
    41    [(c)] (d) In response to a motion under this paragraph, upon notice to
    42  the parties and to the entity required to perform the search  the  court
    43  may  order  an  entity  that has access to the combined DNA index system
    44  ("CODIS") or its successor system to compare a DNA profile obtained from
    45  probative biological material gathered in connection with  the  investi-
    46  gation or prosecution of the [defendant] applicant against DNA databanks
    47  by  keyboard searches, or a similar method that does not involve upload-
    48  ing, upon a court's determination that (1) such  profile  complies  with
    49  federal  bureau  of  investigation  or state requirements, whichever are
    50  applicable and as such requirements are applied to law enforcement agen-
    51  cies seeking such a comparison, and that the data meet state  DNA  index
    52  system  and/or  national  DNA index system criteria as such criteria are
    53  applied to law enforcement agencies seeking such a comparison and (2) if
    54  such comparison had been conducted, [and if the results had been  admit-
    55  ted  in  the  trial resulting in the judgment,] a reasonable probability
    56  exists that the verdict would have been more favorable to  the  [defend-
        A. 2878--A                         11

     1  ant,  or  in  a case involving a plea of guilty, if the results had been
     2  available to the defendant prior to the plea, a  reasonable  probability
     3  exists  that  the  conviction  would not have resulted] applicant.   For
     4  purposes of this subdivision, a "keyboard search" shall mean a search of
     5  a DNA profile against the databank in which the profile that is searched
     6  is not uploaded to or maintained in the databank.
     7    [2.  If  it  appears  by conceded or uncontradicted allegations of the
     8  moving papers or of the answer, or by unquestionable documentary  proof,
     9  that  there  are  circumstances which require denial thereof pursuant to
    10  subdivision two of section 440.10 or subdivision two of section  440.20,
    11  the  court  must summarily deny the motion. If it appears that there are
    12  circumstances authorizing, though not requiring, denial thereof pursuant
    13  to subdivision three of section 440.10 or subdivision three  of  section
    14  440.20,  the  court  may in its discretion either (a) summarily deny the
    15  motion, or (b) proceed to consider the merits thereof.]
    16    [3.] 5. Upon considering the merits of  the  motion,  the  court  must
    17  grant  it  without  conducting  a hearing and vacate the judgment or set
    18  aside the sentence, as the case may be, if:
    19    (a) The moving papers allege a ground constituting legal basis for the
    20  motion; and
    21    (b) Such ground, if based upon the existence or occurrence  of  facts,
    22  is supported by sworn allegations thereof; and
    23    (c)  The sworn allegations of fact essential to support the motion are
    24  either conceded by the people to be true or are conclusively  substanti-
    25  ated by unquestionable documentary proof.
    26    [4.]  6. Upon considering the merits of the motion, the court may deny
    27  it without conducting a hearing if:
    28    (a) The moving papers do not  allege  any  ground  constituting  legal
    29  basis for the motion; or
    30    (b) [The motion is based upon the existence or occurrence of facts and
    31  the  moving  papers  do  not contain sworn allegations substantiating or
    32  tending to substantiate all the essential facts, as required by subdivi-
    33  sion one; or
    34    (c)] An allegation of fact essential to support the motion is  conclu-
    35  sively refuted by unquestionable documentary proof; or
    36    [(d)] (c) An allegation of fact essential to support the motion (i) is
    37  contradicted  by  a court record or other official document[, or is made
    38  solely by the defendant and is unsupported by  any  other  affidavit  or
    39  evidence,]  and (ii) under these and all the other circumstances attend-
    40  ing the case, there is no reasonable possibility that such allegation is
    41  true.
    42    [5.] 7. If the court does not determine the motion pursuant to [subdi-
    43  visions two, three or four] subdivision five or six, it must  conduct  a
    44  hearing  and make findings of fact essential to the determination there-
    45  of. The [defendant] applicant has a right to be present at such  hearing
    46  but  may  waive such right in writing. If he or she does not so waive it
    47  and if he or she is confined in a prison or other  institution  of  this
    48  state, the court must cause him or her to be produced at such hearing.
    49    [6.] 8. At such a hearing, the [defendant] applicant has the burden of
    50  proving  by  a  preponderance  of  the  evidence every fact essential to
    51  support the motion. At the hearing, either party shall receive  a  daily
    52  copy of the hearing minutes, upon request.
    53    [7.]  9. Notwithstanding any other provision of this section, when the
    54  applicant raises a colorable claim of relief pursuant to  this  article,
    55  the  court  shall  not  summarily deny the motion on the ground that the
    56  applicant previously moved for relief under this article.
        A. 2878--A                         12

     1    10. Regardless of whether a hearing was  conducted,  the  court,  upon
     2  determining  the  motion,  must  set forth on the record its findings of
     3  fact, its conclusions of law and the reasons for its determination.
     4    § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
     5  amended  by chapter 671 of the laws of 1971 and as renumbered by chapter
     6  516 of the laws of 1986, is amended to read as follows:
     7    4. An order, entered pursuant to  [section  440.40,  setting  aside  a
     8  sentence  other  than  one  of death, upon motion of the People] article
     9  four hundred forty of this title, shall be authorized to an intermediate
    10  appellate court as a matter of right.
    11    § 6. Subdivision 5 of section 450.10 of the criminal procedure law  is
    12  REPEALED.
    13    §  7.  Section  216  of  the  judiciary law is amended by adding a new
    14  subdivision 7 to read as follows:
    15    7. The chief administrator of the courts shall collect data and report
    16  every year in relation to applications and  motions  filed  pursuant  to
    17  article four hundred forty of the criminal procedure law, broken down by
    18  each  section  of  such  article  to  include  motions filed pursuant to
    19  sections 440.10, 440.20, 440.40, 440.46, 440.46-a,  and  440.47  of  the
    20  criminal  procedure law. Information to be collected and disclosed shall
    21  include the raw number of both applications and/or motions filed in each
    22  county and on appeal in  each  judicial  department.  Information  shall
    23  include  the  top conviction charge for each application or motion; when
    24  pro se applicants request assignment of counsel pursuant to  subdivision
    25  two  of  section  440.30  of  the criminal procedure law, whether or not
    26  counsel was assigned; the outcome of each motion filed,  whether  denied
    27  without hearing, denied with hearing, vacatur granted, or other; and the
    28  average  length  of  time motion under article four hundred forty of the
    29  criminal procedure law remains pending  for  each  county.  Such  report
    30  shall  aggregate  the  data collected by county and judicial department.
    31  The data shall be aggregated in order to protect the identity  of  indi-
    32  vidual  applicants.  The report shall be released publicly and published
    33  on the websites of the office of court administration and  the  division
    34  of criminal justice services. The first report shall be published twelve
    35  months after this subdivision shall have become a law, and shall include
    36  data  from  the  first  six  months following the effective date of this
    37  subdivision. Reports for subsequent periods shall be published  annually
    38  thereafter.
    39    § 8. Severability. If any provision of this act, or any application of
    40  any  provision of this act, is held to be invalid, that shall not affect
    41  the validity or effectiveness of any other provision of this act, or  of
    42  any  other  application of any provision of this act, which can be given
    43  effect without that provision or  application;  and  to  that  end,  the
    44  provisions and applications of this act are severable.
    45    §  9.  This  act  shall take effect on the sixtieth day after it shall
    46  have become a law.