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

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

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Bill Title: Relates to motions to vacate judgment; authorizes filing motions to vacate judgment 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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          2878

                               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 --  read  once  and  referred  to  the
          Committee on Codes

        AN  ACT  to  amend the criminal procedure law, in relation to motions to
          vacate judgment; and to repeal certain provisions of such law relating
          thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  criminal  procedure law is amended by adding 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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00806-01-3
        A. 2878                             2

     1  judgment, and may take such additional action as is appropriate  in  the
     2  circumstances.
     3    §  2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
     4  subdivision 1 as added by chapter 19 of the laws of 2012, paragraph  (h)
     5  of  subdivision  1,  paragraph (a) of subdivision 3 and subdivision 4 as
     6  amended and subdivisions 7 and 8 as renumbered by  chapter  332  of  the
     7  laws  of  2010,  paragraph  (i)  of  subdivision  1 and subdivision 6 as
     8  amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
     9  1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
    10  vision 1 as amended by chapter 92 of the laws of  2021,  paragraphs  (b)
    11  and  (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
    12  and subdivision 9 as added by section 4 of part OO of chapter 55 of  the
    13  laws of 2019, is amended to read as follows:
    14  § 440.10 Motion to vacate judgment.
    15    1.  At  any time after the entry of a judgment obtained at trial or by
    16  plea, the court in which it was entered may, upon motion of the [defend-
    17  ant] applicant, vacate such judgment upon the ground that:
    18    (a) The court did not have jurisdiction of the action or of the person
    19  of the [defendant] applicant; or
    20    (b) The judgment was procured by duress, misrepresentation or fraud on
    21  the part of the court or a prosecutor or  a  person  acting  for  or  in
    22  behalf of a court or a prosecutor; or
    23    (c)  [Material  evidence] Evidence adduced at a trial resulting in the
    24  judgment or that was relied upon by any party as  a  basis  for  a  plea
    25  agreement  was false [and was, prior to the entry of the judgment, known
    26  by the prosecutor or by the court to be false]; or
    27    (d) [Material evidence] Evidence adduced by  the  people  at  a  trial
    28  resulting  in  the  judgment  or  that was relied upon by any party as a
    29  basis for a plea agreement was procured in  violation  of  the  [defend-
    30  ant's] applicant's rights under the constitution of this state or of the
    31  United States; or
    32    (e)  During the proceedings resulting in the judgment, the [defendant]
    33  applicant, by reason of mental  disease  or  defect,  was  incapable  of
    34  understanding or participating in such proceedings; or
    35    (f)  Improper  [and  prejudicial]  conduct not appearing in the record
    36  occurred during a trial resulting in the judgment which conduct,  if  it
    37  had  appeared  in  the  record,  would  have  [required] made possible a
    38  reversal of the judgment upon an appeal therefrom; or
    39    (g) New evidence has been discovered [since the entry  of  a  judgment
    40  based  upon  a  verdict of guilty after trial, which could not have been
    41  produced by the defendant at the trial even with due  diligence  on  his
    42  part  and  which]  or  become  available that, when viewed alone or with
    43  other evidence, is of such character as to create a reasonable probabil-
    44  ity that had such evidence been received  at  the  trial  or  discovered
    45  prior  to  trial  or  plea agreement that the verdict or plea would have
    46  been more favorable to the [defendant; provided that a motion based upon
    47  such ground must be made with due diligence after the discovery of  such
    48  alleged  new  evidence]  applicant. Types of new evidence shall include,
    49  but not be limited to newly available forensic evidence or evidence that
    50  has either been repudiated by the expert  who  originally  provided  the
    51  opinion  at  a  hearing  or  trial  or that has been undermined by later
    52  scientific research or technological advances; or
    53    (g-1) [Forensic DNA]  In  cases  involving  the  forensic  testing  of
    54  evidence  performed since the entry of a judgment, [(1) in the case of a
    55  defendant convicted after a guilty plea, the court has  determined  that
    56  the  defendant  has  demonstrated  a  substantial  probability  that the
        A. 2878                             3

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

     1  consequences,  including  potential  or actual immigration consequences.
     2  There shall be a rebuttable presumption that a  conviction  by  plea  to
     3  such  an  offense  was  not knowing, voluntary and intelligent, and thus
     4  rendered  the  plea constitutionally defective pursuant to paragraph (h)
     5  of this subdivision. There shall be  a  rebuttable  presumption  that  a
     6  conviction  by  verdict to such an offense constitutes cruel and unusual
     7  punishment under section five of article one of the  state  constitution
     8  based  on  such  consequences,  and  thus rendered the verdict constitu-
     9  tionally defective pursuant to paragraph (h) of this subdivision; or
    10    (k) The judgment occurred prior to the effective date of the  laws  of
    11  two  thousand  [twenty-one] twenty-three that amended this paragraph and
    12  is a conviction for an offense as defined  in  [subparagraphs]  subpara-
    13  graph  (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of
    14  section 160.50 of this part, or a misdemeanor under the  former  article
    15  two  hundred  twenty-one of the penal law, in which case the court shall
    16  presume that a conviction by plea for the  aforementioned  offenses  was
    17  not  knowing,  voluntary  and  intelligent  if  it has severe or ongoing
    18  consequences, including but not limited to  potential  or  actual  immi-
    19  gration consequences, and shall presume that a conviction by verdict for
    20  the  aforementioned  offenses  constitutes  cruel and unusual punishment
    21  under section five of article one of the state  constitution,  based  on
    22  those consequences. The people may rebut these presumptions[.]; or
    23    (l)  Any  offense in the state of New York that an intermediate appel-
    24  late court, court of appeals, or United States federal court has  deemed
    25  in  violation of the constitution of this state or of the United States,
    26  or any other right under state or federal law.
    27    2. Notwithstanding the provisions of subdivision one, the court [must]
    28  may deny a motion to vacate a judgment when:
    29    (a) The ground or issue raised upon the motion was  previously  deter-
    30  mined  on  the merits upon an appeal from the judgment, unless since the
    31  time of such appellate determination  there  has  been  a  retroactively
    32  effective  change  in the law controlling such issue. However, if all of
    33  the evidence currently before the court was not duly  considered  previ-
    34  ously  by the court, the court shall grant the motion or order the hear-
    35  ing; or
    36    (b) The judgment is, at the time of the motion, appealable or  pending
    37  on appeal, and sufficient facts appear on the record with respect to the
    38  ground or issue raised upon the motion to permit adequate review thereof
    39  upon such an appeal unless the issue raised upon such motion is ineffec-
    40  tive  assistance  of counsel. This paragraph shall not apply to a motion
    41  under paragraph (i), (j), (k) or (l) of subdivision one of this section;
    42  or
    43    (c) [Although sufficient facts appear on the record of the proceedings
    44  underlying the judgment to have permitted, upon appeal from  such  judg-
    45  ment,  adequate review of the ground or issue raised upon the motion, no
    46  such appellate review or determination occurred owing to the defendant's
    47  unjustifiable failure to take or perfect an appeal during the prescribed
    48  period or to his or her unjustifiable failure to raise  such  ground  or
    49  issue  upon  an appeal actually perfected by him or her unless the issue
    50  raised upon such motion is ineffective assistance of counsel; or
    51    (d)] The ground or issue raised relates solely to the validity of  the
    52  sentence  and  not to the validity of the conviction.  In such case, the
    53  court shall deem the motion to have been made pursuant to section 440.20
    54  of this article.
    55    [3. Notwithstanding the provisions of subdivision one, the  court  may
    56  deny a motion to vacate a judgment when:
        A. 2878                             5

     1    (a)  Although  facts in support of the ground or issue raised upon the
     2  motion could with due diligence by the defendant have readily been  made
     3  to  appear on the record in a manner providing adequate basis for review
     4  of such ground or issue upon an appeal from the judgment, the  defendant
     5  unjustifiably  failed  to  adduce  such matter prior to sentence and the
     6  ground or issue in question was not subsequently determined upon appeal.
     7  This paragraph does not apply to a motion based upon deprivation of  the
     8  right  to  counsel  at  the  trial or upon failure of the trial court to
     9  advise the defendant of such right, or to a motion under  paragraph  (i)
    10  of subdivision one of this section; or
    11    (b)  The  ground or issue raised upon the motion was previously deter-
    12  mined on the merits upon a prior motion or proceeding in a court of this
    13  state, other than an appeal from the  judgment,  or  upon  a  motion  or
    14  proceeding  in  a  federal court; unless since the time of such determi-
    15  nation there has been  a  retroactively  effective  change  in  the  law
    16  controlling such issue; or
    17    (c)  Upon a previous motion made pursuant to this section, the defend-
    18  ant was in a position adequately to raise the ground or issue underlying
    19  the present motion but did not do so.]
    20    (d) Although the court may deny the motion under any  of  the  circum-
    21  stances  specified  in  this subdivision, in the interest of justice and
    22  for good cause shown it may in its discretion grant the motion if it  is
    23  otherwise meritorious and vacate the judgment.
    24    [4.] 3. If the court grants the motion, it must, except as provided in
    25  subdivision  [five] four or [six] five of this section, vacate the judg-
    26  ment, and must either:
    27    (a) dismiss and seal the accusatory instrument, or
    28    (b) order a new trial, or
    29    (c) take such other action as is appropriate in the circumstances.
    30    [5.] 4. Upon granting the motion upon the  ground,  as  prescribed  in
    31  paragraph (g) of subdivision one, that newly discovered evidence creates
    32  a  probability  that  had  such  evidence been received at the trial the
    33  verdict would have been more favorable to the [defendant]  applicant  in
    34  that  the  conviction  would have been for a lesser offense than the one
    35  contained in the verdict, the court may either:
    36    (a) Vacate the judgment and order a new trial; or
    37    (b) With the consent of the people, modify the judgment by reducing it
    38  to one of conviction for such lesser offense. In such  case,  the  court
    39  must re-sentence the [defendant] applicant accordingly.
    40    [6.]  5.  If  the court grants a motion under [paragraph (i) or] para-
    41  graph [(k)] (h), (i), (j),  (k)  or  (l)  of  subdivision  one  of  this
    42  section,  it  must  vacate the judgment [and] on the merits, dismiss the
    43  accusatory instrument, seal the judgment, and may take  such  additional
    44  action  as is appropriate in the circumstances. [In the case of a motion
    45  granted under paragraph (i) of subdivision  one  of  this  section,  the
    46  court  must  vacate  the  judgment on the merits because the defendant's
    47  participation in the offense was a result of having  been  a  victim  of
    48  trafficking.
    49    7.]  6.  Upon  a new trial resulting from an order vacating a judgment
    50  pursuant to this section, the indictment is deemed to  contain  all  the
    51  counts  and to charge all the offenses which it contained and charged at
    52  the time the previous trial was commenced,  regardless  of  whether  any
    53  count was dismissed by the court in the course of such trial, except (a)
    54  those upon or of which the [defendant] applicant was acquitted or deemed
    55  to  have  been  acquitted, and (b) those dismissed by the order vacating
    56  the judgment, and (c) those previously dismissed by an  appellate  court
        A. 2878                             6

     1  upon  an appeal from the judgment, or by any court upon a previous post-
     2  judgment motion.
     3    [8.]  7.  Upon  an order which vacates a judgment based upon a plea of
     4  guilty to an accusatory instrument or a part thereof, but which does not
     5  dismiss the entire accusatory instrument, the criminal action is, in the
     6  absence of an  express  direction  to  the  contrary,  restored  to  its
     7  [prepleading]  pre-pleading  status  and  the  accusatory  instrument is
     8  deemed to contain all the counts and to charge all the offenses which it
     9  contained and charged at the time of the entry of the plea, except those
    10  subsequently dismissed under circumstances specified in  paragraphs  (b)
    11  and  (c)  of subdivision six.   Where the plea of guilty was entered and
    12  accepted, pursuant to subdivision three  of  section  220.30,  upon  the
    13  condition  that  it  constituted  a complete disposition not only of the
    14  accusatory instrument underlying the judgment vacated but also of one or
    15  more other accusatory instruments against the [defendant] applicant then
    16  pending in the same court, the order  of  vacation  completely  restores
    17  such other accusatory instruments; and such is the case even though such
    18  order dismisses the main accusatory instrument underlying the judgment.
    19    [9.]  8. Upon granting of a motion pursuant to paragraph (j) of subdi-
    20  vision one of this section, the court [may] must vacate the judgment and
    21  may, in addition to the remedies in subdivision three of  this  section,
    22  either:
    23    (a)  With  the  consent of the people, [vacate the judgment or] modify
    24  the judgment by reducing it to one of conviction for a lesser offense or
    25  allow the applicant to replead to  a  disposition  agreed  upon  by  the
    26  parties; or
    27    (b)  [Vacate  the judgment and order a new trial wherein the defendant
    28  enters] Permit the applicant to enter a plea to  the  same  offense  [in
    29  order  to  permit the court to] and resentence the [defendant] applicant
    30  in accordance with the amendatory provisions  of  subdivision  one-a  of
    31  section 70.15 of the penal law.
    32    9.  Upon granting of a motion pursuant to paragraph j-1 of subdivision
    33  one of this section, the court must vacate the judgment and  permit  the
    34  applicant  to  enter  a  plea to the same offense in order to permit the
    35  court to resentence the applicant to three hundred sixty-four days.
    36    10. Notwithstanding any other provision of  this  section,  the  court
    37  must order a hearing and address the merits of any claim for relief when
    38  the  applicant  asserts  that, in light of all available evidence, there
    39  exists a colorable claim that he or she is actually innocent.  When  the
    40  applicant  raises  an actual innocence claim based on, in whole or part,
    41  new evidence of actual innocence, the court may not summarily  deny  the
    42  motion  on  the  ground  that  the applicant previously moved for relief
    43  under this article.
    44    § 3. Section 440.20 of the criminal procedure law,  subdivision  1  as
    45  amended by chapter 1 of the laws of 1995, is amended to read as follows:
    46  § 440.20 Motion to set aside sentence; by [defendant] applicant.
    47    1.  At  any time after the entry of a judgment, the court in which the
    48  judgment was entered may, upon motion of the [defendant] applicant,  set
    49  aside  the  sentence upon the ground that it was unauthorized, illegally
    50  imposed, exceeded the maximum allowed by law,  obtained  or  imposed  in
    51  violation  of  the  defendant's  constitutional rights, or was otherwise
    52  invalid as a matter of law.  Where the judgment includes a  sentence  of
    53  death, the court may also set aside the sentence upon any of the grounds
    54  set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
    55  section 440.10 as applied to  a  separate  sentencing  proceeding  under
    56  section  400.27,  provided,  however,  that  to the extent the ground or
        A. 2878                             7

     1  grounds asserted include one or more  of  the  aforesaid  paragraphs  of
     2  subdivision  one  of section 440.10, the court must also apply [subdivi-
     3  sions] subdivision two [and three] of section 440.10, other  than  para-
     4  graph  [(d)]  (c) of [subdivision two of] such [section] subdivision, in
     5  determining the motion. In the event the court enters an order  granting
     6  a  motion to set aside a sentence of death under this section, the court
     7  must either direct  a  new  sentencing  proceeding  in  accordance  with
     8  section  400.27  or,  to  the extent that the defendant cannot be resen-
     9  tenced to death consistent with the laws of this state or the  constitu-
    10  tion  of this state or of the United States, resentence the defendant to
    11  life imprisonment without parole or to a sentence  of  imprisonment  for
    12  the class A-I felony of murder in the first degree other than a sentence
    13  of  life  imprisonment without parole. Upon granting the motion upon any
    14  of the grounds set forth in the aforesaid paragraphs of subdivision  one
    15  of  section 440.10 and setting aside the sentence, the court must afford
    16  the people a reasonable period of time, which shall not be less than ten
    17  days, to determine whether to take an  appeal  from  the  order  setting
    18  aside the sentence of death. The taking of an appeal by the people stays
    19  the  effectiveness  of  that portion of the court's order that directs a
    20  new sentencing proceeding.
    21    2.   Notwithstanding the provisions  of  subdivision  one,  the  court
    22  [must]  may deny such a motion when the ground or issue raised thereupon
    23  was previously determined on the merits upon an appeal from the judgment
    24  or sentence, unless since the time of such appellate determination there
    25  has been a retroactively effective change in the  law  controlling  such
    26  issue.    However, if all of the evidence currently before the court was
    27  not duly considered previously by the court, the court  shall  not  deny
    28  the  motion  to  vacate  and  instead shall order a hearing or grant the
    29  motion. Even if the court has already considered  all  of  the  evidence
    30  currently before the court, the court in the interest of justice and for
    31  good cause shown may grant the motion if it is otherwise meritorious.
    32    3.   [Notwithstanding the provisions of subdivision one, the court may
    33  deny such a motion when the ground or issue raised thereupon was  previ-
    34  ously  determined  on  the merits upon a prior motion or proceeding in a
    35  court of this state, other than an appeal from the judgment, or  upon  a
    36  prior  motion or proceeding in a federal court, unless since the time of
    37  such determination there has been a retroactively  effective  change  in
    38  the  law  controlling such issue.   Despite such determination, however,
    39  the court in the interest of justice and for good cause  shown,  may  in
    40  its discretion grant the motion if it is otherwise meritorious.
    41    4.]    An order setting aside a sentence pursuant to this section does
    42  not affect the validity or status  of  the  underlying  conviction,  and
    43  after  entering  such an order the court must resentence the [defendant]
    44  applicant in accordance with the law.
    45    § 4. Section 440.30 of the criminal procedure law, subdivisions 1  and
    46  1-a  as  amended by chapter 19 of the laws of 2012 and the opening para-
    47  graph of paragraph (b) of subdivision 1 as amended by section 10 of part
    48  LLL of chapter 59 of the laws of 2019, is amended to read as follows:
    49  § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
    50    1. (a) [A] An application for a motion to vacate a  judgment  pursuant
    51  to  section 440.10 or 440.11 of this article and a motion to set aside a
    52  sentence pursuant to section 440.20 of this  article  must  be  made  in
    53  writing  by  the  applicant or their counsel to the judge or justice who
    54  imposed the original sentence and upon reasonable notice to the  people.
    55  [Upon  the motion, a defendant] If, at the time of such person's request
    56  to apply for relief pursuant to this article,  the  original  sentencing
        A. 2878                             8

     1  judge  or  justice  no  longer  works in the court in which the original
     2  sentence was imposed, then the request shall  be  randomly  assigned  to
     3  another judge or justice of the court in which the original sentence was
     4  imposed.
     5    (b)  Upon the submission of an application for relief under this arti-
     6  cle, unless the applicant is represented  by  counsel  or  affirmatively
     7  states  an  intention  to  represent  themselves pro se, the court shall
     8  assign defense counsel if the applicant is indigent or otherwise  quali-
     9  fies for free representation in accordance with the provisions of subdi-
    10  vision  one  of  section seven hundred seventeen and subdivision four of
    11  section seven hundred twenty-two of  the  county  law  and  the  related
    12  provisions of article eighteen-A of such law.
    13    (c) Upon making a determination as to assignment of counsel, the court
    14  shall  also  promptly  order  the  disclosure of discovery to the person
    15  applying for relief and his or her counsel. The order of  disclosure  of
    16  discovery shall include that:
    17    (i)  The  people  produce all items and information that relate to the
    18  subject matter of the case  and  are  in  the  possession,  custody  and
    19  control  of  the prosecution or persons under their direction or control
    20  and make available for  inspection  any  physical  evidence  secured  in
    21  connection  with  the  investigation  or  prosecution  of the applicant,
    22  including all evidence that would be discoverable  pursuant  to  section
    23  245.20 of this part; and
    24    (ii)  The  applicant's  prior  trial  and appellate counsel shall make
    25  available to the applicant or his or her counsel  their  complete  files
    26  relating to the case; and
    27    (iii)  Court  clerks and probation departments shall make available to
    28  the applicant or his or her counsel the court files or probation records
    29  pertaining to the case; and
    30    (iv) Nothing in this section shall preclude the court from  conducting
    31  an  in  camera  inspection  of  evidence  and issuing a protective order
    32  pursuant to section 245.70 of this part at the  request  of  the  prose-
    33  cution or defense.
    34    (v) The discovery order will require that the people and prior defense
    35  counsel  turn  over  all  relevant  discovery to the person applying for
    36  relief or their counsel no later than thirty days from the  issuance  of
    37  the court's discovery order.
    38    (d)  (i)  An  applicant  who is in a position adequately to raise more
    39  than one ground should raise every such ground  upon  which  he  or  she
    40  intends  to  challenge  the judgment or sentence. If the motion is based
    41  upon the existence or occurrence of facts, the motion papers [must]  may
    42  contain  sworn allegations thereof, whether by the [defendant] applicant
    43  or by another person or persons. Such sworn  allegations  may  be  based
    44  upon  personal  knowledge of the affiant or upon information and belief,
    45  provided that in the latter event the affiant must state the sources  of
    46  such  information and the grounds of such belief. The [defendant] appli-
    47  cant may further submit documentary evidence or  information  supporting
    48  or tending to support the allegations of the moving papers.
    49    (ii) The people may file with the court, and in such case must serve a
    50  copy  thereof  upon  the [defendant] applicant or his or her counsel, if
    51  any, an answer denying or admitting any or all of the allegations of the
    52  motion papers, and may further submit documentary evidence  or  informa-
    53  tion refuting or tending to refute such allegations.
    54    (iii)  After all papers of both parties have been filed, and after all
    55  documentary evidence or information, if any,  has  been  submitted,  the
        A. 2878                             9

     1  court must consider the same for the purpose of ascertaining whether the
     2  motion is determinable without a hearing to resolve questions of fact.
     3    [(b)  In  conjunction  with the filing or consideration of a motion to
     4  vacate a judgment pursuant to  section  440.10  of  this  article  by  a
     5  defendant  convicted after a trial, in cases where the court has ordered
     6  an evidentiary hearing upon such motion, the court may  order  that  the
     7  people  produce  or  make  available  for  inspection  property  in  its
     8  possession, custody, or control that was secured in connection with  the
     9  investigation  or prosecution of the defendant upon credible allegations
    10  by the defendant and a finding by  the  court  that  such  property,  if
    11  obtained,  would be probative to the determination of defendant's actual
    12  innocence, and that the request is reasonable. The court shall  deny  or
    13  limit  such  a  request  upon a finding that such a request, if granted,
    14  would threaten the integrity or chain of  custody  of  property  or  the
    15  integrity  of  the processes or functions of a laboratory conducting DNA
    16  testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
    17  other  substantially  negative consequences to any person, undermine the
    18  proper functions of law enforcement  including  the  confidentiality  of
    19  informants,  or on the basis of any other factor identified by the court
    20  in the interests of justice or public safety. The  court  shall  further
    21  ensure  that any property produced pursuant to this paragraph is subject
    22  to a protective order, where  appropriate.  The  court  shall  deny  any
    23  request made pursuant to this paragraph where:
    24    (i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
    25  article does not seek to demonstrate his or her actual innocence of  the
    26  offense  or  offenses  of  which  he  or  she was convicted that are the
    27  subject of the motion, or (2) the defendant has not  presented  credible
    28  allegations and the court has not found that such property, if obtained,
    29  would  be probative to the determination of the defendant's actual inno-
    30  cence and that the request is reasonable;
    31    (ii) the defendant has made his or her motion after  five  years  from
    32  the  date  of  the  judgment of conviction; provided, however, that this
    33  limitation period shall be tolled for five years if the defendant is  in
    34  custody  in connection with the conviction that is the subject of his or
    35  her motion, and provided further that, notwithstanding  such  limitation
    36  periods,  the  court may consider the motion if the defendant has shown:
    37  (A) that he or she has been pursuing his or her  rights  diligently  and
    38  that  some extraordinary circumstance prevented the timely filing of the
    39  motion; (B) that the facts upon which  the  motion  is  predicated  were
    40  unknown  to the defendant or his or her attorney and could not have been
    41  ascertained by the exercise of due diligence prior to the expiration  of
    42  the  statute of limitations; or (C) considering all circumstances of the
    43  case including but not limited to evidence of the defendant's guilt, the
    44  impact of granting or denying such motion upon public confidence in  the
    45  criminal justice system, or upon the safety or welfare of the community,
    46  and the defendant's diligence in seeking to obtain the requested proper-
    47  ty  or  related  relief,  the  interests  of  justice would be served by
    48  considering the motion;
    49    (iii) the defendant is challenging a judgment convicting him or her of
    50  an offense that is not a felony defined in section 10.00  of  the  penal
    51  law; or
    52    (iv)  upon  a finding by the court that the property requested in this
    53  motion would be available through other means through reasonable efforts
    54  by the defendant to obtain such property.
    55    1-a.] 2. (a) [(1)] (i)  Where  the  [defendant's]  applicant's  motion
    56  requests  the  performance of a forensic DNA test on specified evidence,
        A. 2878                            10

     1  and upon the court's determination that any evidence containing deoxyri-
     2  bonucleic acid ("DNA") was secured in connection with the trial  or  the
     3  plea  resulting  in  the judgment, the court shall grant the application
     4  for  forensic  DNA testing of such evidence [upon its determination that
     5  if a DNA test had been conducted on such evidence, and  if  the  results
     6  had been admitted in the trial resulting in the judgment, there exists a
     7  reasonable  probability  that the verdict would have been more favorable
     8  to the defendant.
     9    (2) Where the defendant's motion for forensic DNA testing of specified
    10  evidence is made following a plea of guilty and entry of judgment there-
    11  on convicting him or her of: (A) a homicide offense defined  in  article
    12  one hundred twenty-five of the penal law, any felony sex offense defined
    13  in article one hundred thirty of the penal law, a violent felony offense
    14  as  defined  in paragraph (a) of subdivision one of section 70.02 of the
    15  penal law, or (B) any other felony offense to which he or she pled guil-
    16  ty after being charged in an indictment or information in superior court
    17  with one or more of the offenses listed in clause (A) of  this  subpara-
    18  graph,  then  the court shall grant such a motion upon its determination
    19  that evidence containing DNA was secured in connection with the investi-
    20  gation or prosecution of the defendant, and  if  a  DNA  test  had  been
    21  conducted on such evidence and the results had been known to the parties
    22  prior  to  the entry of the defendant's plea and judgment thereon, there
    23  exists a substantial probability that the  evidence  would  have  estab-
    24  lished  the defendant's actual innocence of the offense or offenses that
    25  are the subject of the defendant's motion; provided, however, that:
    26    (i) the court shall consider whether the defendant had the opportunity
    27  to request such testing prior to entering a guilty plea, and,  where  it
    28  finds  that  the defendant had such opportunity and unjustifiably failed
    29  to do so, the court may deny such motion; and
    30    (ii) a court shall deny the defendant's motion for forensic DNA  test-
    31  ing  where the defendant has made his or her motion more than five years
    32  after entry of the judgment of conviction; except  that  the  limitation
    33  period  may be tolled if the defendant has shown: (A) that he or she has
    34  been pursuing his or her rights diligently and that  some  extraordinary
    35  circumstance  prevented the timely filing of the motion for forensic DNA
    36  testing; (B) that the facts upon which the  motion  is  predicated  were
    37  unknown  to the defendant or his or her attorney and could not have been
    38  ascertained by the exercise of due diligence prior to the expiration  of
    39  this statute of limitations; or (C) considering all circumstances of the
    40  case including but not limited to evidence of the defendant's guilt, the
    41  impact  of granting or denying such motion upon public confidence in the
    42  criminal justice system, or upon the safety or welfare of the community,
    43  and the defendant's diligence in seeking to obtain the requested proper-
    44  ty or related relief, the interests of justice would be served by  toll-
    45  ing such limitation period].
    46    (ii)  Where the applicant's motion for relief requests the performance
    47  of any other testing of  forensic  evidence  or  any  physical  evidence
    48  secured  in  the case, the judge shall grant the application for testing
    49  of such evidence, unless there is no  reasonable  probability  that  the
    50  testing of this evidence could result in a different or improved outcome
    51  for the person applying for relief.
    52    (b) (i) In conjunction with the filing of a motion under this subdivi-
    53  sion,  the court may direct the people to provide the [defendant] appli-
    54  cant and his or her counsel with information in the  possession  of  the
    55  people  concerning  the  current  physical  location  of  the  specified
    56  evidence and if the specified evidence no longer exists or the  physical
        A. 2878                            11

     1  location  of the specified evidence is unknown, a representation to that
     2  effect and information and documentary evidence in the possession of the
     3  people concerning the last known physical  location  of  such  specified
     4  evidence.
     5    (ii) If there is a finding by the court that the specified evidence no
     6  longer  exists  or  the  physical location of such specified evidence is
     7  unknown, [such information in and of itself shall not be a  factor  from
     8  which  any inference unfavorable to the people may be drawn by the court
     9  in deciding a motion under this  section]  the  court  shall  grant  the
    10  applicant's motion and vacate the judgment.
    11    (iii)  The  court,  on  motion  of the [defendant] applicant, may also
    12  issue a subpoena duces tecum directing a  public  or  private  hospital,
    13  laboratory  or  other  entity  to produce such specified evidence in its
    14  possession and/or information and documentary evidence in its possession
    15  concerning the location and status of such specified evidence.
    16    (c) In response to a motion under this paragraph, upon notice  to  the
    17  parties  and  to the entity required to perform the search the court may
    18  order an entity that  has  access  to  the  combined  DNA  index  system
    19  ("CODIS") or its successor system to compare a DNA profile obtained from
    20  probative  biological  material gathered in connection with the investi-
    21  gation or prosecution of the [defendant] applicant against DNA databanks
    22  by keyboard searches, or a similar method that does not involve  upload-
    23  ing,  upon  a  court's determination that (1) such profile complies with
    24  federal bureau of investigation or  state  requirements,  whichever  are
    25  applicable and as such requirements are applied to law enforcement agen-
    26  cies  seeking  such a comparison, and that the data meet state DNA index
    27  system and/or national DNA index system criteria as  such  criteria  are
    28  applied to law enforcement agencies seeking such a comparison and (2) if
    29  such  comparison had been conducted, [and if the results had been admit-
    30  ted in the trial resulting in the judgment,]  a  reasonable  probability
    31  exists  that  the verdict would have been more favorable to the [defend-
    32  ant, or in a case involving a plea of guilty, if the  results  had  been
    33  available  to  the defendant prior to the plea, a reasonable probability
    34  exists that the conviction would not  have  resulted]  applicant.    For
    35  purposes of this subdivision, a "keyboard search" shall mean a search of
    36  a DNA profile against the databank in which the profile that is searched
    37  is not uploaded to or maintained in the databank.
    38    [2.  If  it  appears  by conceded or uncontradicted allegations of the
    39  moving papers or of the answer, or by unquestionable documentary  proof,
    40  that  there  are  circumstances which require denial thereof pursuant to
    41  subdivision two of section 440.10 or subdivision two of section  440.20,
    42  the  court  must summarily deny the motion. If it appears that there are
    43  circumstances authorizing, though not requiring, denial thereof pursuant
    44  to subdivision three of section 440.10 or subdivision three  of  section
    45  440.20,  the  court  may in its discretion either (a) summarily deny the
    46  motion, or (b) proceed to consider the merits thereof.]
    47    3. Upon considering the merits of the motion, the court must grant  it
    48  without  conducting  a  hearing and vacate the judgment or set aside the
    49  sentence, as the case may be, if:
    50    (a) The moving papers allege a ground constituting legal basis for the
    51  motion; and
    52    (b) Such ground, if based upon the existence or occurrence  of  facts,
    53  is supported by sworn allegations thereof; and
    54    (c)  The sworn allegations of fact essential to support the motion are
    55  either conceded by the people to be true or are conclusively  substanti-
    56  ated by unquestionable documentary proof.
        A. 2878                            12

     1    4.  Upon  considering  the merits of the motion, the court may deny it
     2  without conducting a hearing if:
     3    (a)  The  moving  papers  do  not allege any ground constituting legal
     4  basis for the motion; or
     5    (b) [The motion is based upon the existence or occurrence of facts and
     6  the moving papers do not contain  sworn  allegations  substantiating  or
     7  tending to substantiate all the essential facts, as required by subdivi-
     8  sion one; or
     9    (c)]  An allegation of fact essential to support the motion is conclu-
    10  sively refuted by unquestionable documentary proof; or
    11    [(d)] (c) An allegation of fact essential to support the motion (i) is
    12  contradicted by a court record or other official document[, or  is  made
    13  solely  by  the  defendant  and is unsupported by any other affidavit or
    14  evidence,] and (ii) under these and all the other circumstances  attend-
    15  ing the case, there is no reasonable possibility that such allegation is
    16  true.
    17    5. If the court does not determine the motion pursuant to subdivisions
    18  two,  three or four, it must conduct a hearing and make findings of fact
    19  essential to the determination thereof. The [defendant] applicant has  a
    20  right to be present at such hearing but may waive such right in writing.
    21  If  he  or  she  does  not so waive it and if he or she is confined in a
    22  prison or other institution of this state, the court must cause  him  or
    23  her to be produced at such hearing.
    24    6.  At  such  a  hearing,  the [defendant] applicant has the burden of
    25  proving by a preponderance of  the  evidence  every  fact  essential  to
    26  support  the  motion.  At  the  hearing, defense counsel shall receive a
    27  daily copy of the hearing minutes.
    28    7. Regardless of whether a hearing  was  conducted,  the  court,  upon
    29  determining  the  motion,  must  set forth on the record its findings of
    30  fact, its conclusions of law and the reasons for its determination.
    31    § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
    32  amended by chapter 671 of the laws of 1971 and as renumbered by  chapter
    33  516 of the laws of 1986, is amended to read as follows:
    34    4.  An  order,  entered  pursuant  to [section 440.40, setting aside a
    35  sentence other than one of death, upon motion  of  the  People]  article
    36  four hundred forty of this title, shall be authorized to an intermediate
    37  appellate court as a matter of right.
    38    §  6. Subdivision 5 of section 450.10 of the criminal procedure law is
    39  REPEALED.
    40    § 7. Severability. If any provision of this act, or any application of
    41  any provision of this act, is held to be invalid, that shall not  affect
    42  the  validity or effectiveness of any other provision of this act, or of
    43  any other application of any provision of this act, which can  be  given
    44  effect  without  that  provision  or  application;  and to that end, the
    45  provisions and applications of this act are severable.
    46    § 8. This act shall take effect on the sixtieth  day  after  it  shall
    47  have  become  a  law;  provided, however, that paragraphs (b) and (c) of
    48  subdivision 1 of section 440.30 of the criminal procedure law  as  added
    49  by  section  four  of this act shall take effect one year after it shall
    50  have become a law.