Bill Text: NY A09157 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to motions to vacate judgment; authorizes filing motions to vacate judgment due to a change in law; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea 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
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. LBD14606-01-9A. 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-6ant] 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, known15by 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-19ant'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 judgment29based upon a verdict of guilty after trial, which could not have been30produced by the defendant at the trial even with due diligence on his31part 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 upon36such ground must be made with due diligence after the discovery of such37alleged 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 a44defendant convicted after a guilty plea, the court has determined that45the defendant has demonstrated a substantial probability that the46defendant was actually innocent of the offense of which he or she was47convicted, 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-50ant] applicant, or the applicant would have rejected the plea offer. 51 (h) The judgment was obtained in violation of a right of the [defend-52ant] 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 under4section 240.37 (loitering for the purpose of engaging in a prostitution5offense, provided that the defendant was not alleged to be loitering for6the purpose of patronizing a person for prostitution or promoting pros-7titution) or 230.00 (prostitution) or 230.03 (prostitution in a school8zone) 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,17after the defendant has ceased to be a victim of such trafficking or18compelling prostitution crime or has sought services for victims of such19trafficking or compelling prostitution crime, subject to reasonable20concerns for the safety of the defendant, family members of the defend-21ant, or other victims of such trafficking or compelling prostitution22crime that may be jeopardized by the bringing of such motion, or for23other reasons consistent with the purpose of this paragraph; and24(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 [and43satisfies 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,48including 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 sentenceA. 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 proceedings47underlying the judgment to have permitted, upon appeal from such judg-48ment, adequate review of the ground or issue raised upon the motion, no49such appellate review or determination occurred owing to the defendant's50unjustifiable failure to take or perfect an appeal during the prescribed51period or to his unjustifiable failure to raise such ground or issue52upon an appeal actually perfected by him; or53(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 may2deny a motion to vacate a judgment when:3(a) Although facts in support of the ground or issue raised upon the4motion could with due diligence by the defendant have readily been made5to appear on the record in a manner providing adequate basis for review6of such ground or issue upon an appeal from the judgment, the defendant7unjustifiably failed to adduce such matter prior to sentence and the8ground or issue in question was not subsequently determined upon appeal.9This paragraph does not apply to a motion based upon deprivation of the10right to counsel at the trial or upon failure of the trial court to11advise the defendant of such right, or to a motion under paragraph (i)12of subdivision one of this section; or13(b) The ground or issue raised upon the motion was previously deter-14mined on the merits upon a prior motion or proceeding in a court of this15state, other than an appeal from the judgment, or upon a motion or16proceeding in a federal court; unless since the time of such determi-17nation there has been a retroactively effective change in the law18controlling such issue; or19(c) Upon a previous motion made pursuant to this section, the defend-20ant was in a position adequately to raise the ground or issue underlying21the 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 defendant26enters] Permit the applicant to enter a plea to the same offense [in27order to permit the court to] and resentence the [defendant] applicant 28 in accordance with the amendatory provisions of subdivision one-a of 29 section 70.15 of the penal law. 30 9. Upon granting of a motion pursuant to paragraph j-1 of subdivision 31 one of this section, the court must vacate the judgment and permit the 32 applicant to enter a plea to the same offense in order to permit the 33 court to resentence the applicant to three hundred sixty-four days. 34 10. Notwithstanding any other provision of this section, the court 35 must order a hearing and address the merits of any claim for relief when 36 the applicant asserts that, in light of all available evidence, there 37 exists a colorable claim that he or she is actually innocent. When the 38 applicant raises an actual innocence claim based on, in whole or part, 39 new evidence of actual innocence, the court may not summarily deny the 40 motion on the ground that the applicant previously moved for relief 41 under this article. 42 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as 43 amended by chapter 1 of the laws of 1995, is amended to read as follows: 44 § 440.20 Motion to set aside sentence; by [defendant] applicant. 45 1. At any time after the entry of a judgment, the court in which the 46 judgment was entered may, upon motion of the [defendant] applicant, set 47 aside the sentence upon the ground that it was unauthorized, illegally 48 imposed, exceeded the maximum allowed by law, obtained or imposed in 49 violation of the defendant's constitutional rights, or was otherwise 50 invalid as a matter of law. Where the judgment includes a sentence of 51 death, the court may also set aside the sentence upon any of the grounds 52 set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of 53 section 440.10 as applied to a separate sentencing proceeding under 54 section 400.27, provided, however, that to the extent the ground or 55 grounds asserted include one or more of the aforesaid paragraphs of 56 subdivision one of section 440.10, the court must also apply [subdivi-A. 9157 7 1sions] subdivision two [and three] of section 440.10, other than para- 2 graph [(d)] (c) of [subdivision two of] such [section] subdivision, in 3 determining the motion. In the event the court enters an order granting 4 a motion to set aside a sentence of death under this section, the court 5 must either direct a new sentencing proceeding in accordance with 6 section 400.27 or, to the extent that the defendant cannot be resen- 7 tenced to death consistent with the laws of this state or the constitu- 8 tion of this state or of the United States, resentence the defendant to 9 life imprisonment without parole or to a sentence of imprisonment for 10 the class A-I felony of murder in the first degree other than a sentence 11 of life imprisonment without parole. Upon granting the motion upon any 12 of the grounds set forth in the aforesaid paragraphs of subdivision one 13 of section 440.10 and setting aside the sentence, the court must afford 14 the people a reasonable period of time, which shall not be less than ten 15 days, to determine whether to take an appeal from the order setting 16 aside the sentence of death. The taking of an appeal by the people stays 17 the effectiveness of that portion of the court's order that directs a 18 new sentencing proceeding. 19 2. Notwithstanding the provisions of subdivision one, the court 20 [must] may deny such a motion when the ground or issue raised thereupon 21 was previously determined on the merits upon an appeal from the judgment 22 or sentence, unless since the time of such appellate determination there 23 has been a retroactively effective change in the law controlling such 24 issue. However, if all of the evidence currently before the court was 25 not duly considered previously by the court, the court shall not deny 26 the motion to vacate and instead shall order a hearing or grant the 27 motion. Even if the court has already considered all of the evidence 28 currently before the court, the court in the interest of justice and for 29 good cause shown may grant the motion if it is otherwise meritorious. 30 3. [Notwithstanding the provisions of subdivision one, the court may31deny such a motion when the ground or issue raised thereupon was previ-32ously determined on the merits upon a prior motion or proceeding in a33court of this state, other than an appeal from the judgment, or upon a34prior motion or proceeding in a federal court, unless since the time of35such determination there has been a retroactively effective change in36the law controlling such issue. Despite such determination, however,37the court in the interest of justice and for good cause shown, may in38its discretion grant the motion if it is otherwise meritorious.394.] An order setting aside a sentence pursuant to this section does 40 not affect the validity or status of the underlying conviction, and 41 after entering such an order the court must resentence the [defendant] 42 applicant in accordance with the law. 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 whoA. 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 theA. 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 to8vacate a judgment pursuant to section 440.10 of this article by a9defendant convicted after a trial, in cases where the court has ordered10an evidentiary hearing upon such motion, the court may order that the11people produce or make available for inspection property in its12possession, custody, or control that was secured in connection with the13investigation or prosecution of the defendant upon credible allegations14by the defendant and a finding by the court that such property, if15obtained, would be probative to the determination of defendant's actual16innocence, and that the request is reasonable. The court shall deny or17limit such a request upon a finding that such a request, if granted,18would threaten the integrity or chain of custody of property or the19integrity of the processes or functions of a laboratory conducting DNA20testing, pose a risk of harm, intimidation, embarrassment, reprisal, or21other substantially negative consequences to any person, undermine the22proper functions of law enforcement including the confidentiality of23informants, or on the basis of any other factor identified by the court24in the interests of justice or public safety. The court shall further25ensure that any property produced pursuant to this paragraph is subject26to a protective order, where appropriate. The court shall deny any27request made pursuant to this paragraph where:28(i) (1) the defendant's motion pursuant to section 440.10 of this29article does not seek to demonstrate his or her actual innocence of the30offense or offenses of which he or she was convicted that are the31subject of the motion, or (2) the defendant has not presented credible32allegations and the court has not found that such property, if obtained,33would be probative to the determination of the defendant's actual inno-34cence and that the request is reasonable;35(ii) the defendant has made his or her motion after five years from36the date of the judgment of conviction; provided, however, that this37limitation period shall be tolled for five years if the defendant is in38custody in connection with the conviction that is the subject of his or39her motion, and provided further that, notwithstanding such limitation40periods, 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 and42that some extraordinary circumstance prevented the timely filing of the43motion; (B) that the facts upon which the motion is predicated were44unknown to the defendant or his or her attorney and could not have been45ascertained by the exercise of due diligence prior to the expiration of46the statute of limitations; or (C) considering all circumstances of the47case including but not limited to evidence of the defendant's guilt, the48impact of granting or denying such motion upon public confidence in the49criminal justice system, or upon the safety or welfare of the community,50and the defendant's diligence in seeking to obtain the requested proper-51ty or related relief, the interests of justice would be served by52considering the motion;53(iii) the defendant is challenging a judgment convicting him or her of54an offense that is not a felony defined in section 10.00 of the penal55law; orA. 9157 10 1(iv) upon a finding by the court that the property requested in this2motion would be available through other means through reasonable efforts3by the defendant to obtain such property.41-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 that10if a DNA test had been conducted on such evidence, and if the results11had been admitted in the trial resulting in the judgment, there exists a12reasonable probability that the verdict would have been more favorable13to the defendant.14(2) Where the defendant's motion for forensic DNA testing of specified15evidence is made following a plea of guilty and entry of judgment there-16on convicting him or her of: (A) a homicide offense defined in article17one hundred twenty-five of the penal law, any felony sex offense defined18in article one hundred thirty of the penal law, a violent felony offense19as defined in paragraph (a) of subdivision one of section 70.02 of the20penal law, or (B) any other felony offense to which he or she pled guil-21ty after being charged in an indictment or information in superior court22with one or more of the offenses listed in clause (A) of this subpara-23graph, then the court shall grant such a motion upon its determination24that evidence containing DNA was secured in connection with the investi-25gation or prosecution of the defendant, and if a DNA test had been26conducted on such evidence and the results had been known to the parties27prior to the entry of the defendant's plea and judgment thereon, there28exists a substantial probability that the evidence would have estab-29lished the defendant's actual innocence of the offense or offenses that30are the subject of the defendant's motion; provided, however, that:31(i) the court shall consider whether the defendant had the opportunity32to request such testing prior to entering a guilty plea, and, where it33finds that the defendant had such opportunity and unjustifiably failed34to do so, the court may deny such motion; and35(ii) a court shall deny the defendant's motion for forensic DNA test-36ing where the defendant has made his or her motion more than five years37after entry of the judgment of conviction; except that the limitation38period may be tolled if the defendant has shown: (A) that he or she has39been pursuing his or her rights diligently and that some extraordinary40circumstance prevented the timely filing of the motion for forensic DNA41testing; (B) that the facts upon which the motion is predicated were42unknown to the defendant or his or her attorney and could not have been43ascertained by the exercise of due diligence prior to the expiration of44this statute of limitations; or (C) considering all circumstances of the45case including but not limited to evidence of the defendant's guilt, the46impact of granting or denying such motion upon public confidence in the47criminal justice system, or upon the safety or welfare of the community,48and the defendant's diligence in seeking to obtain the requested proper-49ty or related relief, the interests of justice would be served by toll-50ing 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 from13which any inference unfavorable to the people may be drawn by the court14in 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-35ted in the trial resulting in the judgment,] a reasonable probability 36 exists that the verdict would have been more favorable to the [defend-37ant, or in a case involving a plea of guilty, if the results had been38available to the defendant prior to the plea, a reasonable probability39exists 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 the44moving papers or of the answer, or by unquestionable documentary proof,45that there are circumstances which require denial thereof pursuant to46subdivision two of section 440.10 or subdivision two of section 440.20,47the court must summarily deny the motion. If it appears that there are48circumstances authorizing, though not requiring, denial thereof pursuant49to subdivision three of section 440.10 or subdivision three of section50440.20, the court may in its discretion either (a) summarily deny the51motion, 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; andA. 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 and11the moving papers do not contain sworn allegations substantiating or12tending to substantiate all the essential facts, as required by subdivi-13sion one; or14(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 made18solely by the defendant and is unsupported by any other affidavit or19evidence,] 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 a40sentence 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.