Bill Text: NY A09157 | 2019-2020 | General Assembly | Introduced

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Bill Title: Relates to motions to vacate judgment; authorizes filing motions to vacate judgment due to a change in law; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea and relates to the requirements of discovery; and repeals certain provisions of law relating thereto.

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced - Dead) 2020-01-23 - referred to codes [A09157 Detail]

Download: New_York-2019-A09157-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          9157

                   IN ASSEMBLY

                                    January 23, 2020
                                       ___________

        Introduced  by M. of A. QUART -- read once and referred to the Committee
          on Codes

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

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

     1    Section 1. The criminal procedure law  is  amended  by  adding  a  new
     2  section 440.11 to read as follows:
     3  § 440.11 Motion to vacate judgment; change in the law.
     4    1.  At  any time after the entry of a judgment obtained at trial or by
     5  plea, the court in which it was entered may, upon motion of  the  appli-
     6  cant, vacate such judgment upon the ground that:
     7    (a)  The  applicant  was  convicted of any offense in the state of New
     8  York which has been subsequently decriminalized  and  is  thus  a  legal
     9  nullity.
    10    (b) There has been a change, whether substantive or procedural, in the
    11  law or laws applied in the process leading to the applicant's conviction
    12  where  sufficient  reason exists to allow retroactive application of the
    13  changed legal standard.
    14    2. If the court grants a motion under this section, it must vacate the
    15  judgment on the merits, dismiss  the  accusatory  instrument,  seal  the
    16  judgment,  and  may take such additional action as is appropriate in the
    17  circumstances.
    18    § 2. Section 440.10 of the criminal procedure law, paragraph (g-1)  of
    19  subdivision  1 as added by chapter 19 of the laws of 2012, paragraph (h)
    20  of subdivision 1, paragraph (b)  of  subdivision  2,  paragraph  (a)  of
    21  subdivision  3  and subdivision 4 as amended and subdivisions 7 and 8 as
    22  renumbered by chapter 332 of the laws of 2010, paragraph (i) of subdivi-
    23  sion 1 as amended by section 3 of part OO of chapter 55 of the  laws  of
    24  2019,  subparagraph  (ii) of paragraph (i) and paragraph (j) of subdivi-
    25  sion 1 and subdivision 6 as amended by chapter 131 of the laws of  2019,
    26  paragraph  (k)  of  subdivision 1 as added by chapter 132 of the laws of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14606-01-9
        A. 9157                             2

     1  2019, and subdivision 9 as added by section 4 of part OO of  chapter  55
     2  of the laws of 2019, is amended to read as follows:
     3  § 440.10 Motion to vacate judgment.
     4    1.  At  any time after the entry of a judgment obtained at trial or by
     5  plea, the court in which it was entered may, upon motion of the [defend-
     6  ant] applicant, vacate such judgment upon the ground that:
     7    (a) The court did not have jurisdiction of the action or of the person
     8  of the [defendant] applicant; or
     9    (b) The judgment was procured by duress, misrepresentation or fraud on
    10  the part of the court or a prosecutor or  a  person  acting  for  or  in
    11  behalf of a court or a prosecutor; or
    12    (c)  [Material  evidence] Evidence adduced at a trial resulting in the
    13  judgment or that was relied upon by any party as  a  basis  for  a  plea
    14  agreement  was false [and was, prior to the entry of the judgment, known
    15  by the prosecutor or by the court to be false]; or
    16    (d) [Material evidence] Evidence adduced by  the  people  at  a  trial
    17  resulting  in  the  judgment  or  that was relied upon by any party as a
    18  basis for a plea agreement was procured in  violation  of  the  [defend-
    19  ant's] applicant's rights under the constitution of this state or of the
    20  United States; or
    21    (e)  During the proceedings resulting in the judgment, the [defendant]
    22  applicant, by reason of mental  disease  or  defect,  was  incapable  of
    23  understanding or participating in such proceedings; or
    24    (f)  Improper  [and  prejudicial]  conduct not appearing in the record
    25  occurred during a trial resulting in the judgment which conduct,  if  it
    26  had  appeared  in  the  record,  would  have  [required] made possible a
    27  reversal of the judgment upon an appeal therefrom; or
    28    (g) New evidence has been discovered [since the entry  of  a  judgment
    29  based  upon  a  verdict of guilty after trial, which could not have been
    30  produced by the defendant at the trial even with due  diligence  on  his
    31  part  and  which]  or  become  available that, when viewed alone or with
    32  other evidence, is of such character as to create a reasonable probabil-
    33  ity that had such evidence been received  at  the  trial  or  discovered
    34  prior  to  trial  or  plea agreement that the verdict or plea would have
    35  been more favorable to the [defendant; provided that a motion based upon
    36  such ground must be made with due diligence after the discovery of  such
    37  alleged  new  evidence]  applicant. Types of new evidence shall include,
    38  but not be limited to newly available forensic evidence or evidence that
    39  has either been repudiated by the expert  who  originally  provided  the
    40  opinion  at  a  hearing  or  trial  or that has been undermined by later
    41  scientific research or technological advances; or
    42    (g-1) [Forensic DNA]  In  cases  involving  the  forensic  testing  of
    43  evidence  performed since the entry of a judgment, [(1) in the case of a
    44  defendant convicted after a guilty plea, the court has  determined  that
    45  the  defendant  has  demonstrated  a  substantial  probability  that the
    46  defendant was actually innocent of the offense of which he  or  she  was
    47  convicted,  or  (2) in the case of a defendant convicted after a trial,]
    48  the court has determined that there exists a reasonable probability that
    49  the verdict or plea offer would have been more favorable to the [defend-
    50  ant] applicant, or the applicant would have rejected the plea offer.
    51    (h) The judgment was obtained in violation of a right of the  [defend-
    52  ant]  applicant  under  the  constitution of this state or of the United
    53  States, including, but not limited to, a judgment entered, whether  upon
    54  trial or guilty plea, against an applicant who is actually innocent.  An
    55  applicant  is  actually innocent where the applicant proves by a prepon-
        A. 9157                             3

     1  derance of the evidence that no reasonable jury of the applicant's peers
     2  would have found the applicant guilty beyond a reasonable doubt; or
     3    (i) The judgment is a conviction where the [arresting charge was under
     4  section  240.37 (loitering for the purpose of engaging in a prostitution
     5  offense, provided that the defendant was not alleged to be loitering for
     6  the purpose of patronizing a person for prostitution or promoting  pros-
     7  titution)  or  230.00 (prostitution) or 230.03 (prostitution in a school
     8  zone) of the penal law, and the defendant's]  applicant's  participation
     9  in  the  offense was a result of having been a victim of sex trafficking
    10  under section 230.34 of the penal law, sex trafficking of a child  under
    11  section  230.34-a  of  the  penal  law,  labor trafficking under section
    12  135.35 of the penal law,  aggravated  labor  trafficking  under  section
    13  135.37 of the penal law, compelling prostitution under section 230.33 of
    14  the  penal  law, or trafficking in persons under the Trafficking Victims
    15  Protection Act (United States Code, title 22, chapter 78); provided that
    16    (i) [a motion under this paragraph shall be made with  due  diligence,
    17  after  the  defendant  has  ceased to be a victim of such trafficking or
    18  compelling prostitution crime or has sought services for victims of such
    19  trafficking or compelling  prostitution  crime,  subject  to  reasonable
    20  concerns  for the safety of the defendant, family members of the defend-
    21  ant, or other victims of such  trafficking  or  compelling  prostitution
    22  crime  that  may  be  jeopardized by the bringing of such motion, or for
    23  other reasons consistent with the purpose of this paragraph; and
    24    (ii)] official documentation of the [defendant's]  applicant's  status
    25  as  a  victim  of  sex  trafficking, labor trafficking, aggravated labor
    26  trafficking, compelling prostitution or trafficking in  persons  at  the
    27  time  of  the  offense  from a federal, state or local government agency
    28  shall create a presumption that the  [defendant's]  applicant's  partic-
    29  ipation in the offense was a result of having been a victim of sex traf-
    30  ficking,  labor  trafficking,  aggravated  labor trafficking, compelling
    31  prostitution or trafficking in persons, but shall not  be  required  for
    32  granting a motion under this paragraph;
    33    (ii) a motion under this paragraph, and all pertinent papers and docu-
    34  ments, shall be confidential and may not be made available to any person
    35  or  public  or private agency except when specifically authorized by the
    36  court; and
    37    (iii) when a motion is filed under this paragraph, the court may, upon
    38  the consent of the applicant and all of  the  involved  state  or  local
    39  prosecutorial  agencies,  consolidate  into  one  proceeding a motion to
    40  vacate judgments imposed by distinct or multiple criminal courts.
    41    (j) The judgment is a conviction for [a class A or  unclassified]  any
    42  misdemeanor  entered  prior to the effective date of this paragraph [and
    43  satisfies the ground prescribed in paragraph (h)  of  this  subdivision]
    44  that resulted in ongoing collateral consequences, including potential or
    45  actual  immigration consequences.   There shall be a rebuttable presump-
    46  tion that a conviction by plea to  such  an  offense  was  not  knowing,
    47  voluntary  and  intelligent,  [based on ongoing collateral consequences,
    48  including potential or actual immigration consequences, and  there]  and
    49  thus  rendered the plea constitutionally defective pursuant to paragraph
    50  (h) of this subdivision.  There shall be a rebuttable presumption that a
    51  conviction by verdict to such an offense constitutes cruel  and  unusual
    52  punishment  under  section five of article one of the state constitution
    53  based on such consequences  and  thus  rendered  the  verdict  constitu-
    54  tionally defective pursuant to paragraph (h) of this subdivision; or
    55    (j-1)  The  judgment is a conviction for a class D or E felony entered
    56  prior to the effective date of this paragraph  for  which  the  sentence
        A. 9157                             4

     1  imposed  was  one year, and such sentence resulted in ongoing collateral
     2  consequences, including potential or  actual  immigration  consequences.
     3  There  shall  be  a  rebuttable presumption that a conviction by plea to
     4  such  an  offense  was  not knowing, voluntary and intelligent, and thus
     5  rendered the plea constitutionally defective pursuant to  paragraph  (h)
     6  of  this  subdivision.  There  shall  be a rebuttable presumption that a
     7  conviction by verdict to such an offense constitutes cruel  and  unusual
     8  punishment  under  section five of article one of the state constitution
     9  based on such consequences, and  thus  rendered  the  verdict  constitu-
    10  tionally defective pursuant to paragraph (h) of this subdivision; or
    11    (k)  The  judgment  occurred prior to the effective date of this para-
    12  graph and is a conviction for an offense as defined in subparagraph  (i)
    13  or  (ii) of paragraph (k) of subdivision three of section 160.50 of this
    14  part, or a misdemeanor under article two hundred twenty-one of the penal
    15  law, in which case the court shall presume that a conviction by plea for
    16  the aforementioned offenses was not knowing, voluntary  and  intelligent
    17  if  it  has severe or ongoing consequences, including but not limited to
    18  potential or actual immigration consequences, and thus rendered the plea
    19  constitutionally defective pursuant to paragraph (h)  of  this  subdivi-
    20  sion;  and  shall presume that a conviction by verdict for the aforemen-
    21  tioned offenses constitutes cruel and unusual punishment  under  section
    22  five  of  article  one  of the state constitution, based on those conse-
    23  quences, and thus rendered the verdict constitutionally defective pursu-
    24  ant to paragraph (h) of this subdivision.   The people may  rebut  these
    25  presumptions[.]; or
    26    (l)  Any  offense in the state of New York that an intermediate appel-
    27  late court, court of appeals, or United States federal court has  deemed
    28  in  violation of the constitution of this state or of the United States,
    29  or any other right under state or federal law.
    30    2. Notwithstanding the provisions of subdivision one, the court [must]
    31  may deny a motion to vacate a judgment when:
    32    (a) The ground or issue raised upon the motion was  previously  deter-
    33  mined  on  the merits upon an appeal from the judgment, unless since the
    34  time of such appellate determination  there  has  been  a  retroactively
    35  effective  change  in the law controlling such issue. However, if all of
    36  the evidence currently before the court was not duly  considered  previ-
    37  ously  by the court, the court shall grant the motion or order the hear-
    38  ing; or
    39    (b) The judgment is, at the time of the motion, appealable or  pending
    40  on appeal, and sufficient facts appear on the record with respect to the
    41  ground or issue raised upon the motion to permit adequate review thereof
    42  upon such an appeal unless the issue raised in such a motion is ineffec-
    43  tive  assistance of counsel.  This paragraph shall not apply to a motion
    44  under paragraph (i), (j), (k) or (l) of subdivision one of this section;
    45  or
    46    (c) [Although sufficient facts appear on the record of the proceedings
    47  underlying the judgment to have permitted, upon appeal from  such  judg-
    48  ment,  adequate review of the ground or issue raised upon the motion, no
    49  such appellate review or determination occurred owing to the defendant's
    50  unjustifiable failure to take or perfect an appeal during the prescribed
    51  period or to his unjustifiable failure to raise  such  ground  or  issue
    52  upon an appeal actually perfected by him; or
    53    (d)]  The ground or issue raised relates solely to the validity of the
    54  sentence and not to the validity of the conviction.  In such  case,  the
    55  court shall deem the motion to have been made pursuant to section 440.20
    56  of this article.
        A. 9157                             5

     1    [3.  Notwithstanding  the provisions of subdivision one, the court may
     2  deny a motion to vacate a judgment when:
     3    (a)  Although  facts in support of the ground or issue raised upon the
     4  motion could with due diligence by the defendant have readily been  made
     5  to  appear on the record in a manner providing adequate basis for review
     6  of such ground or issue upon an appeal from the judgment, the  defendant
     7  unjustifiably  failed  to  adduce  such matter prior to sentence and the
     8  ground or issue in question was not subsequently determined upon appeal.
     9  This paragraph does not apply to a motion based upon deprivation of  the
    10  right  to  counsel  at  the  trial or upon failure of the trial court to
    11  advise the defendant of such right, or to a motion under  paragraph  (i)
    12  of subdivision one of this section; or
    13    (b)  The  ground or issue raised upon the motion was previously deter-
    14  mined on the merits upon a prior motion or proceeding in a court of this
    15  state, other than an appeal from the  judgment,  or  upon  a  motion  or
    16  proceeding  in  a  federal court; unless since the time of such determi-
    17  nation there has been  a  retroactively  effective  change  in  the  law
    18  controlling such issue; or
    19    (c)  Upon a previous motion made pursuant to this section, the defend-
    20  ant was in a position adequately to raise the ground or issue underlying
    21  the present motion but did not do so.]
    22    (d) Although the court may deny the motion under any  of  the  circum-
    23  stances  specified  in  this subdivision, in the interest of justice and
    24  for good cause shown it may in its discretion grant the motion if it  is
    25  otherwise meritorious and vacate the judgment.
    26    [4.] 3. If the court grants the motion, it must, except as provided in
    27  subdivision  [five] four or [six] five of this section, vacate the judg-
    28  ment, and must either:
    29    (a) dismiss and seal the accusatory instrument, or
    30    (b) order a new trial, or
    31    (c) take such other action as is appropriate in the circumstances.
    32    [5.] 4. Upon granting the motion upon the  ground,  as  prescribed  in
    33  paragraph (g) of subdivision one, that newly discovered evidence creates
    34  a  probability  that  had  such  evidence been received at the trial the
    35  verdict would have been more favorable to the [defendant]  applicant  in
    36  that  the  conviction  would have been for a lesser offense than the one
    37  contained in the verdict, the court may either:
    38    (a) Vacate the judgment and order a new trial; or
    39    (b) With the consent of the people, modify the judgment by reducing it
    40  to one of conviction for such lesser offense. In such  case,  the  court
    41  must re-sentence the [defendant] applicant accordingly.
    42    [6.]  5.  If  the court grants a motion under [paragraph (i) or] para-
    43  graph [(k)] (h), (i), (j),  (k)  or  (l)  of  subdivision  one  of  this
    44  section,  it  must  vacate the judgment [and] on the merits, dismiss the
    45  accusatory instrument, seal the judgment, and may take  such  additional
    46  action as is appropriate in the circumstances.
    47    [7.]  6.  Upon a new trial resulting from an order vacating a judgment
    48  pursuant to this section, the indictment is deemed to  contain  all  the
    49  counts  and to charge all the offenses which it contained and charged at
    50  the time the previous trial was commenced,  regardless  of  whether  any
    51  count was dismissed by the court in the course of such trial, except (a)
    52  those upon or of which the [defendant] applicant was acquitted or deemed
    53  to  have  been  acquitted, and (b) those dismissed by the order vacating
    54  the judgment, and (c) those previously dismissed by an  appellate  court
    55  upon  an appeal from the judgment, or by any court upon a previous post-
    56  judgment motion.
        A. 9157                             6

     1    [8.] 7. Upon an order which vacates a judgment based upon  a  plea  of
     2  guilty to an accusatory instrument or a part thereof, but which does not
     3  dismiss the entire accusatory instrument, the criminal action is, in the
     4  absence  of  an  express  direction  to  the  contrary,  restored to its
     5  [prepleading]  pre-pleading  status  and  the  accusatory  instrument is
     6  deemed to contain all the counts and to charge all the offenses which it
     7  contained and charged at the time of the entry of the plea, except those
     8  subsequently dismissed under circumstances specified in  paragraphs  (b)
     9  and  (c)  of subdivision six.   Where the plea of guilty was entered and
    10  accepted, pursuant to subdivision three  of  section  220.30,  upon  the
    11  condition  that  it  constituted  a complete disposition not only of the
    12  accusatory instrument underlying the judgment vacated but also of one or
    13  more other accusatory instruments against the [defendant] applicant then
    14  pending in the same court, the order  of  vacation  completely  restores
    15  such other accusatory instruments; and such is the case even though such
    16  order dismisses the main accusatory instrument underlying the judgment.
    17    [9.]  8. Upon granting of a motion pursuant to paragraph (j) of subdi-
    18  vision one of this section, the court [may] must vacate the judgment and
    19  may, in addition to the remedies in subdivision three of  this  section,
    20  either:
    21    (a)  With  the  consent of the people, [vacate the judgment or] modify
    22  the judgment by reducing it to one of conviction for a lesser offense or
    23  allow the applicant to replead to  a  disposition  agreed  upon  by  the
    24  parties; or
    25    (b)  [Vacate  the judgment and order a new trial wherein the defendant
    26  enters] Permit the applicant to enter a plea to  the  same  offense  [in
    27  order  to  permit the court to] and resentence the [defendant] applicant
    28  in accordance with the amendatory provisions  of  subdivision  one-a  of
    29  section 70.15 of the penal law.
    30    9.  Upon granting of a motion pursuant to paragraph j-1 of subdivision
    31  one of this section, the court must vacate the judgment and  permit  the
    32  applicant  to  enter  a  plea to the same offense in order to permit the
    33  court to resentence the applicant to three hundred sixty-four days.
    34    10. Notwithstanding any other provision of  this  section,  the  court
    35  must order a hearing and address the merits of any claim for relief when
    36  the  applicant  asserts  that, in light of all available evidence, there
    37  exists a colorable claim that he or she is actually innocent.  When  the
    38  applicant  raises  an actual innocence claim based on, in whole or part,
    39  new evidence of actual innocence, the court may not summarily  deny  the
    40  motion  on  the  ground  that  the applicant previously moved for relief
    41  under this article.
    42    § 3. Section 440.20 of the criminal procedure law,  subdivision  1  as
    43  amended by chapter 1 of the laws of 1995, is amended to read as follows:
    44  § 440.20 Motion to set aside sentence; by [defendant] applicant.
    45    1.  At  any time after the entry of a judgment, the court in which the
    46  judgment was entered may, upon motion of the [defendant] applicant,  set
    47  aside  the  sentence upon the ground that it was unauthorized, illegally
    48  imposed, exceeded the maximum allowed by law,  obtained  or  imposed  in
    49  violation  of  the  defendant's  constitutional rights, or was otherwise
    50  invalid as a matter of law.  Where the judgment includes a  sentence  of
    51  death, the court may also set aside the sentence upon any of the grounds
    52  set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
    53  section 440.10 as applied to  a  separate  sentencing  proceeding  under
    54  section  400.27,  provided,  however,  that  to the extent the ground or
    55  grounds asserted include one or more  of  the  aforesaid  paragraphs  of
    56  subdivision  one  of section 440.10, the court must also apply [subdivi-
        A. 9157                             7

     1  sions] subdivision two [and three] of section 440.10, other  than  para-
     2  graph  [(d)]  (c) of [subdivision two of] such [section] subdivision, in
     3  determining the motion. In the event the court enters an order  granting
     4  a  motion to set aside a sentence of death under this section, the court
     5  must either direct  a  new  sentencing  proceeding  in  accordance  with
     6  section  400.27  or,  to  the extent that the defendant cannot be resen-
     7  tenced to death consistent with the laws of this state or the  constitu-
     8  tion  of this state or of the United States, resentence the defendant to
     9  life imprisonment without parole or to a sentence  of  imprisonment  for
    10  the class A-I felony of murder in the first degree other than a sentence
    11  of  life  imprisonment without parole. Upon granting the motion upon any
    12  of the grounds set forth in the aforesaid paragraphs of subdivision  one
    13  of  section 440.10 and setting aside the sentence, the court must afford
    14  the people a reasonable period of time, which shall not be less than ten
    15  days, to determine whether to take an  appeal  from  the  order  setting
    16  aside the sentence of death. The taking of an appeal by the people stays
    17  the  effectiveness  of  that portion of the court's order that directs a
    18  new sentencing proceeding.
    19    2.   Notwithstanding the provisions  of  subdivision  one,  the  court
    20  [must]  may deny such a motion when the ground or issue raised thereupon
    21  was previously determined on the merits upon an appeal from the judgment
    22  or sentence, unless since the time of such appellate determination there
    23  has been a retroactively effective change in the  law  controlling  such
    24  issue.    However, if all of the evidence currently before the court was
    25  not duly considered previously by the court, the court  shall  not  deny
    26  the  motion  to  vacate  and  instead shall order a hearing or grant the
    27  motion. Even if the court has already considered  all  of  the  evidence
    28  currently before the court, the court in the interest of justice and for
    29  good cause shown may grant the motion if it is otherwise meritorious.
    30    3.   [Notwithstanding the provisions of subdivision one, the court may
    31  deny such a motion when the ground or issue raised thereupon was  previ-
    32  ously  determined  on  the merits upon a prior motion or proceeding in a
    33  court of this state, other than an appeal from the judgment, or  upon  a
    34  prior  motion or proceeding in a federal court, unless since the time of
    35  such determination there has been a retroactively  effective  change  in
    36  the  law  controlling such issue.   Despite such determination, however,
    37  the court in the interest of justice and for good cause  shown,  may  in
    38  its discretion grant the motion if it is otherwise meritorious.
    39    4.]    An order setting aside a sentence pursuant to this section does
    40  not affect the validity or status  of  the  underlying  conviction,  and
    41  after  entering  such an order the court must resentence the [defendant]
    42  applicant in accordance with the law.   The date of  such  resentencing,
    43  following  the grant of a motion pursuant to this section, shall control
    44  for purposes of determining an applicant's predicate status under  para-
    45  graph (b) of subdivision one of section 70.04, paragraph (b) of subdivi-
    46  sion  one  of section 70.06, section 70.08, paragraph (b) of subdivision
    47  one of section 70.10, and section 70.70 of the penal law.
    48    § 4. Section 440.30 of the criminal procedure law, subdivisions 1  and
    49  1-a  as  amended by chapter 19 of the laws of 2012 and the opening para-
    50  graph of paragraph (b) of subdivision 1 as amended by section 10 of part
    51  LLL of chapter 59 of the laws of 2019, is amended to read as follows:
    52  § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
    53    1. (a) [A] An application for a motion to vacate a  judgment  pursuant
    54  to  section 440.10 or 440.11 of this article and a motion to set aside a
    55  sentence pursuant to section 440.20 of this  article  must  be  made  in
    56  writing  by  the  applicant or their counsel to the judge or justice who
        A. 9157                             8

     1  imposed the original sentence and upon reasonable notice to the  people.
     2  [Upon  the motion, a defendant] If, at the time of such person's request
     3  to apply for relief pursuant to this article,  the  original  sentencing
     4  judge  or  justice  no  longer  works in the court in which the original
     5  sentence was imposed, then the request shall  be  randomly  assigned  to
     6  another judge or justice of the court in which the original sentence was
     7  imposed.
     8    (b)  Upon submitting an application for relief under this article, the
     9  applicant may request that the court assign him or her an  attorney  for
    10  the  preparation of and proceedings on the motion to vacate judgment and
    11  to set aside the sentence pursuant to  this  article.  The  court  shall
    12  assign  defense counsel if the applicant is indigent or otherwise quali-
    13  fies for free representation in accordance with the provisions of subdi-
    14  vision one of section seven hundred seventeen and  subdivision  four  of
    15  section  seven  hundred  twenty-two  of  the  county law and the related
    16  provisions of article eighteen-A of such law.
    17    (c) Upon making a determination as to assignment of counsel, the court
    18  shall also promptly order the disclosure  of  discovery  to  the  person
    19  applying  for  relief and his or her counsel. The order of disclosure of
    20  discovery shall include that:
    21    (i) The people produce all items and information that  relate  to  the
    22  subject  matter  of  the  case  and  are  in the possession, custody and
    23  control of the prosecution or persons under their direction  or  control
    24  and  make  available  for  inspection  any  physical evidence secured in
    25  connection with the  investigation  or  prosecution  of  the  applicant,
    26  including  all  evidence  that would be discoverable pursuant to section
    27  245.20 of this part; and
    28    (ii) The applicant's prior trial  and  appellate  counsel  shall  make
    29  available  to  the  applicant or his or her counsel their complete files
    30  relating to the case; and
    31    (iii) Court clerks and probation departments shall make  available  to
    32  the applicant or his or her counsel the court files or probation records
    33  pertaining to the case; and
    34    (iv)  Nothing in this section shall preclude the court from conducting
    35  an in camera inspection of  evidence  and  issuing  a  protective  order
    36  pursuant  to  section  245.70  of this part at the request of the prose-
    37  cution or defense.
    38    (v) The discovery order will require that the people and prior defense
    39  counsel turn over all relevant discovery  to  the  person  applying  for
    40  relief  or  their counsel no later than thirty days from the issuance of
    41  the court's discovery order.
    42    (d) (i) An applicant who is in a position  adequately  to  raise  more
    43  than  one  ground  should  raise  every such ground upon which he or she
    44  intends to challenge the judgment or sentence. If the  motion  is  based
    45  upon  the existence or occurrence of facts, the motion papers [must] may
    46  contain sworn allegations thereof, whether by the [defendant]  applicant
    47  or  by  another  person  or persons. Such sworn allegations may be based
    48  upon personal knowledge of the affiant or upon information  and  belief,
    49  provided  that in the latter event the affiant must state the sources of
    50  such information and the grounds of such belief. The [defendant]  appli-
    51  cant  may  further submit documentary evidence or information supporting
    52  or tending to support the allegations of the moving papers.
    53    (ii) The people may file with the court, and in such case must serve a
    54  copy thereof upon the [defendant] applicant or his or  her  counsel,  if
    55  any, an answer denying or admitting any or all of the allegations of the
        A. 9157                             9

     1  motion  papers,  and may further submit documentary evidence or informa-
     2  tion refuting or tending to refute such allegations.
     3    (iii)  After all papers of both parties have been filed, and after all
     4  documentary evidence or information, if any,  has  been  submitted,  the
     5  court must consider the same for the purpose of ascertaining whether the
     6  motion is determinable without a hearing to resolve questions of fact.
     7    [(b)  In  conjunction  with the filing or consideration of a motion to
     8  vacate a judgment pursuant to  section  440.10  of  this  article  by  a
     9  defendant  convicted after a trial, in cases where the court has ordered
    10  an evidentiary hearing upon such motion, the court may  order  that  the
    11  people  produce  or  make  available  for  inspection  property  in  its
    12  possession, custody, or control that was secured in connection with  the
    13  investigation  or prosecution of the defendant upon credible allegations
    14  by the defendant and a finding by  the  court  that  such  property,  if
    15  obtained,  would be probative to the determination of defendant's actual
    16  innocence, and that the request is reasonable. The court shall  deny  or
    17  limit  such  a  request  upon a finding that such a request, if granted,
    18  would threaten the integrity or chain of  custody  of  property  or  the
    19  integrity  of  the processes or functions of a laboratory conducting DNA
    20  testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
    21  other  substantially  negative consequences to any person, undermine the
    22  proper functions of law enforcement  including  the  confidentiality  of
    23  informants,  or on the basis of any other factor identified by the court
    24  in the interests of justice or public safety. The  court  shall  further
    25  ensure  that any property produced pursuant to this paragraph is subject
    26  to a protective order, where  appropriate.  The  court  shall  deny  any
    27  request made pursuant to this paragraph where:
    28    (i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
    29  article does not seek to demonstrate his or her actual innocence of  the
    30  offense  or  offenses  of  which  he  or  she was convicted that are the
    31  subject of the motion, or (2) the defendant has not  presented  credible
    32  allegations and the court has not found that such property, if obtained,
    33  would  be probative to the determination of the defendant's actual inno-
    34  cence and that the request is reasonable;
    35    (ii) the defendant has made his or her motion after  five  years  from
    36  the  date  of  the  judgment of conviction; provided, however, that this
    37  limitation period shall be tolled for five years if the defendant is  in
    38  custody  in connection with the conviction that is the subject of his or
    39  her motion, and provided further that, notwithstanding  such  limitation
    40  periods,  the  court may consider the motion if the defendant has shown:
    41  (A) that he or she has been pursuing his or her  rights  diligently  and
    42  that  some extraordinary circumstance prevented the timely filing of the
    43  motion; (B) that the facts upon which  the  motion  is  predicated  were
    44  unknown  to the defendant or his or her attorney and could not have been
    45  ascertained by the exercise of due diligence prior to the expiration  of
    46  the  statute of limitations; or (C) considering all circumstances of the
    47  case including but not limited to evidence of the defendant's guilt, the
    48  impact of granting or denying such motion upon public confidence in  the
    49  criminal justice system, or upon the safety or welfare of the community,
    50  and the defendant's diligence in seeking to obtain the requested proper-
    51  ty  or  related  relief,  the  interests  of  justice would be served by
    52  considering the motion;
    53    (iii) the defendant is challenging a judgment convicting him or her of
    54  an offense that is not a felony defined in section 10.00  of  the  penal
    55  law; or
        A. 9157                            10

     1    (iv)  upon  a finding by the court that the property requested in this
     2  motion would be available through other means through reasonable efforts
     3  by the defendant to obtain such property.
     4    1-a.]  2.  (a)  [(1)]  (i)  Where the [defendant's] applicant's motion
     5  requests the performance of a forensic DNA test on  specified  evidence,
     6  and upon the court's determination that any evidence containing deoxyri-
     7  bonucleic  acid  ("DNA") was secured in connection with the trial or the
     8  plea resulting in the judgment, the court shall  grant  the  application
     9  for  forensic  DNA testing of such evidence [upon its determination that
    10  if a DNA test had been conducted on such evidence, and  if  the  results
    11  had been admitted in the trial resulting in the judgment, there exists a
    12  reasonable  probability  that the verdict would have been more favorable
    13  to the defendant.
    14    (2) Where the defendant's motion for forensic DNA testing of specified
    15  evidence is made following a plea of guilty and entry of judgment there-
    16  on convicting him or her of: (A) a homicide offense defined  in  article
    17  one hundred twenty-five of the penal law, any felony sex offense defined
    18  in article one hundred thirty of the penal law, a violent felony offense
    19  as  defined  in paragraph (a) of subdivision one of section 70.02 of the
    20  penal law, or (B) any other felony offense to which he or she pled guil-
    21  ty after being charged in an indictment or information in superior court
    22  with one or more of the offenses listed in clause (A) of  this  subpara-
    23  graph,  then  the court shall grant such a motion upon its determination
    24  that evidence containing DNA was secured in connection with the investi-
    25  gation or prosecution of the defendant, and  if  a  DNA  test  had  been
    26  conducted on such evidence and the results had been known to the parties
    27  prior  to  the entry of the defendant's plea and judgment thereon, there
    28  exists a substantial probability that the  evidence  would  have  estab-
    29  lished  the defendant's actual innocence of the offense or offenses that
    30  are the subject of the defendant's motion; provided, however, that:
    31    (i) the court shall consider whether the defendant had the opportunity
    32  to request such testing prior to entering a guilty plea, and,  where  it
    33  finds  that  the defendant had such opportunity and unjustifiably failed
    34  to do so, the court may deny such motion; and
    35    (ii) a court shall deny the defendant's motion for forensic DNA  test-
    36  ing  where the defendant has made his or her motion more than five years
    37  after entry of the judgment of conviction; except  that  the  limitation
    38  period  may be tolled if the defendant has shown: (A) that he or she has
    39  been pursuing his or her rights diligently and that  some  extraordinary
    40  circumstance  prevented the timely filing of the motion for forensic DNA
    41  testing; (B) that the facts upon which the  motion  is  predicated  were
    42  unknown  to the defendant or his or her attorney and could not have been
    43  ascertained by the exercise of due diligence prior to the expiration  of
    44  this statute of limitations; or (C) considering all circumstances of the
    45  case including but not limited to evidence of the defendant's guilt, the
    46  impact  of granting or denying such motion upon public confidence in the
    47  criminal justice system, or upon the safety or welfare of the community,
    48  and the defendant's diligence in seeking to obtain the requested proper-
    49  ty or related relief, the interests of justice would be served by  toll-
    50  ing such limitation period].
    51    (ii)  Where the applicant's motion for relief requests the performance
    52  of any other testing of  forensic  evidence  or  any  physical  evidence
    53  secured  in  the case, the judge shall grant the application for testing
    54  of such evidence, unless there is no  reasonable  probability  that  the
    55  testing of this evidence could result in a different or improved outcome
    56  for the person applying for relief.
        A. 9157                            11

     1    (b) (i) In conjunction with the filing of a motion under this subdivi-
     2  sion,  the court may direct the people to provide the [defendant] appli-
     3  cant and his or her counsel with information in the  possession  of  the
     4  people  concerning  the  current  physical  location  of  the  specified
     5  evidence  and if the specified evidence no longer exists or the physical
     6  location of the specified evidence is unknown, a representation to  that
     7  effect and information and documentary evidence in the possession of the
     8  people  concerning  the  last  known physical location of such specified
     9  evidence.
    10    (ii) If there is a finding by the court that the specified evidence no
    11  longer exists or the physical location of  such  specified  evidence  is
    12  unknown,  [such  information in and of itself shall not be a factor from
    13  which any inference unfavorable to the people may be drawn by the  court
    14  in  deciding  a  motion  under  this  section] the court shall grant the
    15  applicant's motion and vacate the judgment.
    16    (iii) The court, on motion of  the  [defendant]  applicant,  may  also
    17  issue  a  subpoena  duces  tecum directing a public or private hospital,
    18  laboratory or other entity to produce such  specified  evidence  in  its
    19  possession and/or information and documentary evidence in its possession
    20  concerning the location and status of such specified evidence.
    21    (c)  In  response to a motion under this paragraph, upon notice to the
    22  parties and to the entity required to perform the search the  court  may
    23  order  an  entity  that  has  access  to  the  combined DNA index system
    24  ("CODIS") or its successor system to compare a DNA profile obtained from
    25  probative biological material gathered in connection with  the  investi-
    26  gation or prosecution of the [defendant] applicant against DNA databanks
    27  by  keyboard searches, or a similar method that does not involve upload-
    28  ing, upon a court's determination that (1) such  profile  complies  with
    29  federal  bureau  of  investigation  or state requirements, whichever are
    30  applicable and as such requirements are applied to law enforcement agen-
    31  cies seeking such a comparison, and that the data meet state  DNA  index
    32  system  and/or  national  DNA index system criteria as such criteria are
    33  applied to law enforcement agencies seeking such a comparison and (2) if
    34  such comparison had been conducted, [and if the results had been  admit-
    35  ted  in  the  trial resulting in the judgment,] a reasonable probability
    36  exists that the verdict would have been more favorable to  the  [defend-
    37  ant,  or  in  a case involving a plea of guilty, if the results had been
    38  available to the defendant prior to the plea, a  reasonable  probability
    39  exists  that  the  conviction  would not have resulted] applicant.   For
    40  purposes of this subdivision, a "keyboard search" shall mean a search of
    41  a DNA profile against the databank in which the profile that is searched
    42  is not uploaded to or maintained in the databank.
    43    [2. If it appears by conceded or  uncontradicted  allegations  of  the
    44  moving  papers or of the answer, or by unquestionable documentary proof,
    45  that there are circumstances which require denial  thereof  pursuant  to
    46  subdivision  two of section 440.10 or subdivision two of section 440.20,
    47  the court must summarily deny the motion. If it appears that  there  are
    48  circumstances authorizing, though not requiring, denial thereof pursuant
    49  to  subdivision  three of section 440.10 or subdivision three of section
    50  440.20, the court may in its discretion either (a)  summarily  deny  the
    51  motion, or (b) proceed to consider the merits thereof.]
    52    3.  Upon considering the merits of the motion, the court must grant it
    53  without conducting a hearing and vacate the judgment or  set  aside  the
    54  sentence, as the case may be, if:
    55    (a) The moving papers allege a ground constituting legal basis for the
    56  motion; and
        A. 9157                            12

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