Bill Text: NY A10131 | 2023-2024 | General Assembly | Introduced

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

Spectrum: Partisan Bill (Democrat 11-0)

Status: (Introduced) 2024-05-28 - ordered to third reading rules cal.210 [A10131 Detail]

Download: New_York-2023-A10131-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          10131

                   IN ASSEMBLY

                                       May 6, 2024
                                       ___________

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

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

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

     1    Section  1.  The  criminal  procedure law is amended by adding two new
     2  sections 440.00 and 440.11 to read as follows:
     3  § 440.00 Definition.
     4    As used in this article, the term "applicant" means a person previous-
     5  ly convicted of a crime who is applying for relief under this article.
     6  § 440.11 Motion to vacate judgment; change in the law.
     7    1. At any time after the entry of a judgment obtained at trial  or  by
     8  plea,  the  court in which it was entered may, upon motion of the appli-
     9  cant, vacate such conviction upon the  ground  that  the  applicant  was
    10  convicted  of any offense in the state of New York which has been subse-
    11  quently decriminalized and is thus a legal nullity.
    12    2. If the court grants a motion under this section,  it  shall  vacate
    13  the  conviction  on  the merits, dismiss the accusatory instrument, seal
    14  the conviction, and may take such additional action as is appropriate in
    15  the circumstances.
    16    § 2. Section 440.10 of the criminal procedure law, paragraph (g-1)  of
    17  subdivision  1 as added by chapter 19 of the laws of 2012, paragraph (h)
    18  of subdivision 1, paragraph (a) of subdivision 3 and  subdivision  4  as
    19  amended  and  subdivisions  7  and 8 as renumbered by chapter 332 of the
    20  laws of 2010, paragraph (i)  of  subdivision  1  and  subdivision  6  as
    21  amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
    22  1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
    23  vision  1  as  amended by chapter 92 of the laws of 2021, paragraphs (b)
    24  and (c) of subdivision 2 as amended by chapter 501 of the laws of  2021,
    25  and  subdivision 9 as added by section 4 of part OO of chapter 55 of the
    26  laws of 2019, is amended to read as follows:
    27  § 440.10 Motion to vacate judgment.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00806-06-4
        A. 10131                            2

     1    1. At any time after the entry of a judgment obtained at trial  or  by
     2  plea, the court in which it was entered may, upon motion of the [defend-
     3  ant] applicant, vacate such judgment upon the ground that:
     4    (a) The court did not have jurisdiction of the action or of the person
     5  of the [defendant] applicant; or
     6    (b) The judgment was procured by duress, misrepresentation or fraud on
     7  the  part  of  the  court  or  a prosecutor or a person acting for or in
     8  behalf of a court or a prosecutor; or
     9    (c) [Material evidence adduced at a trial] Evidence  that  was  likely
    10  relied  upon by a fact finder resulting in the judgment at trial or that
    11  was likely relied upon by any party as a basis for a plea agreement  was
    12  false  [and was, prior to the entry of the judgment, known by the prose-
    13  cutor or by the court to be false]; or
    14    (d) [Material evidence adduced by the people at a trial] Evidence that
    15  was likely relied upon by a fact finder resulting  in  the  judgment  at
    16  trial  or that was likely relied upon by any party as a basis for a plea
    17  agreement was procured in violation  of  the  [defendant's]  applicant's
    18  rights under the constitution of this state or of the United States; or
    19    (e)  During the proceedings resulting in the judgment, the [defendant]
    20  applicant, by reason of mental  disease  or  defect,  was  incapable  of
    21  understanding or participating in such proceedings; or
    22    (f)  Improper  [and  prejudicial]  conduct not appearing in the record
    23  occurred during a trial resulting in the judgment which conduct,  if  it
    24  had  appeared  in  the  record,  would  have  [required] made possible a
    25  reversal of the judgment upon an appeal therefrom; or
    26    (g) New evidence has been discovered [since the entry  of  a  judgment
    27  based  upon  a  verdict of guilty after trial, which could not have been
    28  produced by the defendant at the trial even with due  diligence  on  his
    29  part  and  which]  or  become  available that, when viewed alone or with
    30  other evidence, is of such character as to create a reasonable probabil-
    31  ity that had such evidence been received  at  the  trial  or  discovered
    32  prior  to  trial  or  plea agreement that the verdict or plea would have
    33  been more favorable to the [defendant; provided that a motion based upon
    34  such ground must be made with due diligence after the discovery of  such
    35  alleged  new  evidence]  applicant. Types of new evidence shall include,
    36  but not be limited to newly available forensic evidence or evidence that
    37  has either been repudiated by the expert  who  originally  provided  the
    38  opinion  at  a  hearing  or  trial  or that has been undermined by later
    39  scientific research or technological advances; or
    40    (g-1) [Forensic DNA]  In  cases  involving  the  forensic  testing  of
    41  evidence  performed since the entry of a judgment, [(1) in the case of a
    42  defendant convicted after a guilty plea, the court has  determined  that
    43  the  defendant  has  demonstrated  a  substantial  probability  that the
    44  defendant was actually innocent of the offense of which he  or  she  was
    45  convicted,  or  (2) in the case of a defendant convicted after a trial,]
    46  the court has determined that there exists a reasonable probability that
    47  the verdict or plea offer would have been more favorable to the [defend-
    48  ant] applicant, or the applicant would have rejected the plea offer.
    49    (h) The judgment was obtained in violation of a right of the  [defend-
    50  ant]  applicant  under  the  constitution of this state or of the United
    51  States, including, but not limited to, a judgment entered, whether  upon
    52  trial or guilty plea, against an applicant who is actually innocent.  An
    53  applicant  is  actually innocent where the applicant proves by a prepon-
    54  derance of the evidence that no reasonable jury of the applicant's peers
    55  would have found the applicant guilty beyond a reasonable doubt; or
        A. 10131                            3

     1    (i) The judgment is a conviction where the  [defendant's]  applicant's
     2  participation in the offense was a result of having been a victim of sex
     3  trafficking  under section 230.34 of the penal law, sex trafficking of a
     4  child under section 230.34-a of the penal law, labor  trafficking  under
     5  section  135.35  of  the  penal  law, aggravated labor trafficking under
     6  section 135.37 of the penal law, compelling prostitution  under  section
     7  230.33 of the penal law, or trafficking in persons under the Trafficking
     8  Victims  Protection  Act  (United  States  Code,  title 22, chapter 78);
     9  provided that
    10    (i) official documentation of the [defendant's] applicant's status  as
    11  a  victim  of sex trafficking, labor trafficking, aggravated labor traf-
    12  ficking, compelling prostitution, or trafficking in persons at the  time
    13  of  the  offense  from a federal, state or local government agency shall
    14  create a presumption that the [defendant's] applicant's participation in
    15  the offense was a result of having been a  victim  of  sex  trafficking,
    16  labor trafficking, aggravated labor trafficking, compelling prostitution
    17  or  trafficking  in  persons,  but  shall not be required for granting a
    18  motion under this paragraph;
    19    (ii) a motion under this paragraph, and all pertinent papers and docu-
    20  ments, shall be confidential and may not be made available to any person
    21  or public or private [entity] agency except  [where]  when  specifically
    22  authorized by the court; and
    23    (iii) when a motion is filed under this paragraph, the court may, upon
    24  the  consent  of  the  petitioner and all of the involved state [and] or
    25  local prosecutorial agencies [that prosecuted each matter],  consolidate
    26  into  one proceeding a motion to vacate judgments imposed by distinct or
    27  multiple criminal courts; or
    28    (j) The judgment is a conviction for [a class A or  unclassified]  any
    29  misdemeanor  entered  prior  to the effective date of this paragraph and
    30  satisfies the ground prescribed in paragraph (h)  of  this  subdivision.
    31  There  shall  be  a  rebuttable presumption that a conviction by plea to
    32  such an offense was not knowing, voluntary  and  intelligent,  based  on
    33  ongoing  collateral  consequences,  including  potential or actual immi-
    34  gration consequences, and there shall be a rebuttable presumption that a
    35  conviction by verdict constitutes cruel  and  unusual  punishment  under
    36  section  five  of  article  one  of the state constitution based on such
    37  consequences; or
    38    (k) The judgment occurred prior to the effective date of the  laws  of
    39  two  thousand  [twenty-one] twenty-three that amended this paragraph and
    40  is a conviction for an offense as defined  in  [subparagraphs]  subpara-
    41  graph  (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of
    42  section 160.50 of this part, or a misdemeanor under the  former  article
    43  two  hundred  twenty-one of the penal law, in which case the court shall
    44  presume that a conviction by plea for the  aforementioned  offenses  was
    45  not  knowing,  voluntary  and  intelligent  if  it has severe or ongoing
    46  consequences, including but not limited to  potential  or  actual  immi-
    47  gration consequences, and shall presume that a conviction by verdict for
    48  the  aforementioned  offenses  constitutes  cruel and unusual punishment
    49  under section five of article one of the state  constitution,  based  on
    50  those consequences. The people may rebut these presumptions[.]; or
    51    (l)  Any  offense in the state of New York that an intermediate appel-
    52  late court, court of appeals, or United States federal court with juris-
    53  diction over New York state law issues has deemed in  violation  of  the
    54  constitution  of  this state or of the United States, or any other right
    55  under state or federal law.
        A. 10131                            4

     1    2. Notwithstanding the provisions of subdivision one, the court [must]
     2  may deny a motion to vacate a judgment when:
     3    (a)  The  ground or issue raised upon the motion was previously deter-
     4  mined on the merits upon an appeal from the judgment, unless  since  the
     5  time  of  such  appellate  determination  there has been a retroactively
     6  effective change in the law controlling such issue. However, if  all  of
     7  the  evidence  currently before the court was not duly considered previ-
     8  ously by the court, the court shall grant the motion or order the  hear-
     9  ing; or
    10    (b)  The judgment is, at the time of the motion, appealable or pending
    11  on appeal, and sufficient facts appear on the record with respect to the
    12  ground or issue raised upon the motion to permit adequate review thereof
    13  upon such an appeal unless the issue raised upon such motion is ineffec-
    14  tive assistance of counsel. This paragraph shall not apply to  a  motion
    15  under paragraph (i), (j), (k) or (l) of subdivision one of this section;
    16  or
    17    (c) [Although sufficient facts appear on the record of the proceedings
    18  underlying  the  judgment to have permitted, upon appeal from such judg-
    19  ment, adequate review of the ground or issue raised upon the motion,  no
    20  such appellate review or determination occurred owing to the defendant's
    21  unjustifiable failure to take or perfect an appeal during the prescribed
    22  period  or  to  his or her unjustifiable failure to raise such ground or
    23  issue upon an appeal actually perfected by him or her unless  the  issue
    24  raised upon such motion is ineffective assistance of counsel; or
    25    (d)]  The ground or issue raised relates solely to the validity of the
    26  sentence and not to the validity of the conviction. In  such  case,  the
    27  court shall deem the motion to have been made pursuant to section 440.20
    28  of this article.
    29    [3.  Notwithstanding  the provisions of subdivision one, the court may
    30  deny a motion to vacate a judgment when:
    31    (a) Although facts in support of the ground or issue raised  upon  the
    32  motion  could with due diligence by the defendant have readily been made
    33  to appear on the record in a manner providing adequate basis for  review
    34  of  such ground or issue upon an appeal from the judgment, the defendant
    35  unjustifiably failed to adduce such matter prior  to  sentence  and  the
    36  ground or issue in question was not subsequently determined upon appeal.
    37  This  paragraph does not apply to a motion based upon deprivation of the
    38  right to counsel at the trial or upon failure  of  the  trial  court  to
    39  advise  the  defendant of such right, or to a motion under paragraph (i)
    40  of subdivision one of this section; or
    41    (b) The ground or issue raised upon the motion was  previously  deter-
    42  mined on the merits upon a prior motion or proceeding in a court of this
    43  state,  other  than  an  appeal  from  the judgment, or upon a motion or
    44  proceeding in a federal court; unless since the time  of  such  determi-
    45  nation  there  has  been  a  retroactively  effective  change in the law
    46  controlling such issue; or
    47    (c) Upon a previous motion made pursuant to this section, the  defend-
    48  ant was in a position adequately to raise the ground or issue underlying
    49  the present motion but did not do so.]
    50    (d)  Although  the  court may deny the motion under any of the circum-
    51  stances specified in this subdivision, in the interest  of  justice  and
    52  for  good cause shown it may in its discretion grant the motion if it is
    53  otherwise meritorious and vacate the judgment.
    54    [4.] 3. If the court grants the motion, it must, except as provided in
    55  subdivision [five] four or [six] five of this section, vacate the  judg-
    56  ment, and must either:
        A. 10131                            5

     1    (a) dismiss and seal the accusatory instrument, or
     2    (b) order a new trial, or
     3    (c) take such other action as is appropriate in the circumstances.
     4    [5.]  4.  Upon  granting  the motion upon the ground, as prescribed in
     5  paragraph (g) of subdivision one, that newly discovered evidence creates
     6  a probability that had such evidence been  received  at  the  trial  the
     7  verdict  would  have been more favorable to the [defendant] applicant in
     8  that the conviction would have been for a lesser offense  than  the  one
     9  contained in the verdict, the court may either:
    10    (a) Vacate the judgment and order a new trial; or
    11    (b) With the consent of the people, modify the judgment by reducing it
    12  to  one  of  conviction for such lesser offense. In such case, the court
    13  must re-sentence the [defendant] applicant accordingly.
    14    [6.] 5. If the court grants a motion under [paragraph  (i)  or]  para-
    15  graph  [(k)]  (h),  (i),  (j),  (k)  or  (l)  of subdivision one of this
    16  section, it must vacate the judgment [and] on the  merits,  dismiss  the
    17  accusatory  instrument,  seal the judgment, and may take such additional
    18  action as is appropriate in the circumstances. [In the case of a  motion
    19  granted  under  paragraph  (i)  of  subdivision one of this section, the
    20  court must vacate the judgment on the  merits  because  the  defendant's
    21  participation  in  the  offense  was a result of having been a victim of
    22  trafficking.
    23    7.] 6. Upon a new trial resulting from an order  vacating  a  judgment
    24  pursuant  to  this  section, the indictment is deemed to contain all the
    25  counts and to charge all the offenses which it contained and charged  at
    26  the  time  the  previous  trial was commenced, regardless of whether any
    27  count was dismissed by the court in the course of such trial, except (a)
    28  those upon or of which the [defendant] applicant was acquitted or deemed
    29  to have been acquitted, and (b) those dismissed by  the  order  vacating
    30  the  judgment,  and (c) those previously dismissed by an appellate court
    31  upon an appeal from the judgment, or by any court upon a previous  post-
    32  judgment motion.
    33    [8.]  7.  Upon  an order which vacates a judgment based upon a plea of
    34  guilty to an accusatory instrument or a part thereof, but which does not
    35  dismiss the entire accusatory instrument, the criminal action is, in the
    36  absence of an  express  direction  to  the  contrary,  restored  to  its
    37  [prepleading]  pre-pleading  status  and  the  accusatory  instrument is
    38  deemed to contain all the counts and to charge all the offenses which it
    39  contained and charged at the time of the entry of the plea, except those
    40  subsequently dismissed under circumstances specified in  paragraphs  (b)
    41  and  (c)  of subdivision six.   Where the plea of guilty was entered and
    42  accepted, pursuant to subdivision three  of  section  220.30,  upon  the
    43  condition  that  it  constituted  a complete disposition not only of the
    44  accusatory instrument underlying the judgment vacated but also of one or
    45  more other accusatory instruments against the [defendant] applicant then
    46  pending in the same court, the order  of  vacation  completely  restores
    47  such other accusatory instruments; and such is the case even though such
    48  order dismisses the main accusatory instrument underlying the judgment.
    49    [9.]  8. Upon granting of a motion pursuant to paragraph (j) of subdi-
    50  vision one of this section, the court may either:
    51    (a) With the consent of the people, vacate the judgment or modify  the
    52  judgment by reducing it to one of conviction for a lesser offense; or
    53    (b)  Vacate the judgment and order a new trial wherein the [defendant]
    54  applicant enters a plea to the same offense in order to permit the court
    55  to resentence the [defendant] applicant in accordance with the amendato-
    56  ry provisions of subdivision one-a of section 70.15 of the penal law.
        A. 10131                            6

     1    § 3. Section 440.20 of the criminal procedure law,  subdivision  1  as
     2  amended by chapter 1 of the laws of 1995, is amended to read as follows:
     3  § 440.20 Motion to set aside sentence; by [defendant] applicant.
     4    1.  At  any time after the entry of a judgment, the court in which the
     5  judgment was entered may, upon motion of the [defendant] applicant,  set
     6  aside  the  sentence upon the ground that it was unauthorized, illegally
     7  imposed, exceeded the maximum allowed by law,  obtained  or  imposed  in
     8  violation  of  the  defendant's  constitutional rights, or was otherwise
     9  invalid as a matter of law.  Where the judgment includes a  sentence  of
    10  death, the court may also set aside the sentence upon any of the grounds
    11  set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
    12  section 440.10 as applied to  a  separate  sentencing  proceeding  under
    13  section  400.27,  provided,  however,  that  to the extent the ground or
    14  grounds asserted include one or more  of  the  aforesaid  paragraphs  of
    15  subdivision  one  of section 440.10, the court must also apply [subdivi-
    16  sions] subdivision two [and three] of section 440.10, other  than  para-
    17  graph  [(d)]  (c) of [subdivision two of] such [section] subdivision, in
    18  determining the motion. In the event the court enters an order  granting
    19  a  motion to set aside a sentence of death under this section, the court
    20  must either direct  a  new  sentencing  proceeding  in  accordance  with
    21  section  400.27  or,  to  the extent that the defendant cannot be resen-
    22  tenced to death consistent with the laws of this state or the  constitu-
    23  tion  of this state or of the United States, resentence the defendant to
    24  life imprisonment without parole or to a sentence  of  imprisonment  for
    25  the class A-I felony of murder in the first degree other than a sentence
    26  of  life  imprisonment without parole. Upon granting the motion upon any
    27  of the grounds set forth in the aforesaid paragraphs of subdivision  one
    28  of  section 440.10 and setting aside the sentence, the court must afford
    29  the people a reasonable period of time, which shall not be less than ten
    30  days, to determine whether to take an  appeal  from  the  order  setting
    31  aside the sentence of death. The taking of an appeal by the people stays
    32  the  effectiveness  of  that portion of the court's order that directs a
    33  new sentencing proceeding.
    34    2.   Notwithstanding the provisions  of  subdivision  one,  the  court
    35  [must]  may deny such a motion when the ground or issue raised thereupon
    36  was previously determined on the merits upon an appeal from the judgment
    37  or sentence, unless since the time of such appellate determination there
    38  has been a retroactively effective change in the  law  controlling  such
    39  issue.    However, if all of the evidence currently before the court was
    40  not duly considered previously by the court, the court  shall  not  deny
    41  the  motion  to  vacate  and  instead shall order a hearing or grant the
    42  motion. Even if the court has already considered  all  of  the  evidence
    43  currently before the court, the court in the interest of justice and for
    44  good cause shown may grant the motion if it is otherwise meritorious.
    45    3.   [Notwithstanding the provisions of subdivision one, the court may
    46  deny such a motion when the ground or issue raised thereupon was  previ-
    47  ously  determined  on  the merits upon a prior motion or proceeding in a
    48  court of this state, other than an appeal from the judgment, or  upon  a
    49  prior  motion or proceeding in a federal court, unless since the time of
    50  such determination there has been a retroactively  effective  change  in
    51  the  law  controlling such issue.   Despite such determination, however,
    52  the court in the interest of justice and for good cause  shown,  may  in
    53  its discretion grant the motion if it is otherwise meritorious.
    54    4.]    An order setting aside a sentence pursuant to this section does
    55  not affect the validity or status  of  the  underlying  conviction,  and
        A. 10131                            7

     1  after  entering  such an order the court must resentence the [defendant]
     2  applicant in accordance with the law.
     3    §  4. Section 440.30 of the criminal procedure law, subdivisions 1 and
     4  1-a as amended by chapter 19 of the laws of 2012 and the  opening  para-
     5  graph of paragraph (b) of subdivision 1 as amended by section 10 of part
     6  LLL of chapter 59 of the laws of 2019, is amended to read as follows:
     7  § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
     8    1.  [(a)  A]  An application for assignment of counsel for a motion to
     9  vacate a judgment pursuant to section 440.10 or 440.11 of  this  article
    10  and  a motion to set aside a sentence pursuant to section 440.20 of this
    11  article must be made in writing by a pro se applicant to  the  judge  or
    12  justice  who imposed the original sentence and upon reasonable notice to
    13  the people. [Upon the motion, a defendant]
    14    (a) The court shall assign defense counsel in cases where there  is  a
    15  colorable  claim of relief according to this article, in accordance with
    16  section seven hundred twenty-two of the county law. For the  purpose  of
    17  this  section,  a  colorable  claim  is  a  claim that, taking the facts
    18  alleged in the application as true and viewed in a light most  favorable
    19  to the applicant, would entitle the applicant to relief.
    20    (b)  If  the judge decides not to assign counsel, they shall state the
    21  reasons for denying the request for assignment of counsel in writing.
    22    (c) If, at the time of such  applicant's  request  for  assignment  of
    23  counsel, the original sentencing judge or justice no longer works in the
    24  court in which the original sentence was imposed, then the request shall
    25  be  randomly  assigned to another judge or justice of the court in which
    26  the original sentence was imposed.
    27    (d) Applicants already represented by counsel, either appointed pursu-
    28  ant to section seven hundred twenty-two of the county law  or  otherwise
    29  retained,  are  not  required  to  file an application for assignment of
    30  counsel.
    31    2. Upon the request of the applicant or his or  her  defense  counsel,
    32  the court shall order:
    33    (a)  The  people  to  make  available  a copy of its file of the case,
    34  including any physical evidence in the  people's  possession  and  grand
    35  jury minutes;
    36    (b)  The applicant's prior trial and appellate defense counsel to make
    37  available their complete files relating to the case;
    38    (c) Court clerks and probation departments to make available the court
    39  files or probation records relating to the case; and
    40    (d) Any law enforcement agency involved with the case to turn over its
    41  files  of  the  case,  including  police  reports,  witness  statements,
    42  evidence  vouchers,  or  any  other  relevant records or evidence at its
    43  disposal.
    44    (e) The court shall further ensure that any disclosure of evidence  or
    45  property  ordered  pursuant  to  this  subdivision  may  be subject to a
    46  protective order as defined in section 245.70 of this part, where appro-
    47  priate.
    48    (f) Nothing in this section shall preclude the court  from  conducting
    49  an  in  camera  inspection  of  evidence  and issuing a protective order
    50  pursuant to section 245.70 of this part at the  request  of  the  prose-
    51  cution or defense.
    52    3. (a) An applicant who is in a position adequately to raise more than
    53  one  ground  should raise every such ground upon which he or she intends
    54  to challenge the judgment or sentence. If the motion is based  upon  the
    55  existence  or  occurrence of facts, the motion papers [must] may contain
    56  sworn allegations thereof, whether by the [defendant]  applicant  or  by
        A. 10131                            8

     1  another  person  or  persons.  Such  sworn allegations may be based upon
     2  personal knowledge of  the  affiant  or  upon  information  and  belief,
     3  provided  that in the latter event the affiant must state the sources of
     4  such  information and the grounds of such belief. The [defendant] appli-
     5  cant may further submit documentary evidence or  information  supporting
     6  or tending to support the allegations of the moving papers.
     7    (b)  The people may file with the court, and in such case must serve a
     8  copy thereof upon the [defendant] applicant or his or  her  counsel,  if
     9  any, an answer denying or admitting any or all of the allegations of the
    10  motion  papers,  and may further submit documentary evidence or informa-
    11  tion refuting or tending to refute such allegations.
    12    (c) After all papers of both parties have been filed,  and  after  all
    13  documentary  evidence  or  information,  if any, has been submitted, the
    14  court must consider the same for the purpose of ascertaining whether the
    15  motion is determinable without a hearing to resolve questions of fact.
    16    [(b) In conjunction with the filing or consideration of  a  motion  to
    17  vacate  a  judgment  pursuant  to  section  440.10  of this article by a
    18  defendant convicted after a trial, in cases where the court has  ordered
    19  an  evidentiary  hearing  upon such motion, the court may order that the
    20  people  produce  or  make  available  for  inspection  property  in  its
    21  possession,  custody, or control that was secured in connection with the
    22  investigation or prosecution of the defendant upon credible  allegations
    23  by  the  defendant  and  a  finding  by the court that such property, if
    24  obtained, would be probative to the determination of defendant's  actual
    25  innocence,  and  that the request is reasonable. The court shall deny or
    26  limit such a request upon a finding that such  a  request,  if  granted,
    27  would  threaten  the  integrity  or  chain of custody of property or the
    28  integrity of the processes or functions of a laboratory  conducting  DNA
    29  testing,  pose a risk of harm, intimidation, embarrassment, reprisal, or
    30  other substantially negative consequences to any person,  undermine  the
    31  proper  functions  of  law  enforcement including the confidentiality of
    32  informants, or on the basis of any other factor identified by the  court
    33  in  the  interests  of justice or public safety. The court shall further
    34  ensure that any property produced pursuant to this paragraph is  subject
    35  to  a  protective  order,  where  appropriate.  The court shall deny any
    36  request made pursuant to this paragraph where:
    37    (i) (1) the defendant's motion pursuant  to  section  440.10  of  this
    38  article  does not seek to demonstrate his or her actual innocence of the
    39  offense or offenses of which he  or  she  was  convicted  that  are  the
    40  subject  of  the motion, or (2) the defendant has not presented credible
    41  allegations and the court has not found that such property, if obtained,
    42  would be probative to the determination of the defendant's actual  inno-
    43  cence and that the request is reasonable;
    44    (ii)  the  defendant  has made his or her motion after five years from
    45  the date of the judgment of conviction;  provided,  however,  that  this
    46  limitation  period shall be tolled for five years if the defendant is in
    47  custody in connection with the conviction that is the subject of his  or
    48  her  motion,  and provided further that, notwithstanding such limitation
    49  periods, the court may consider the motion if the defendant  has  shown:
    50  (A)  that  he  or she has been pursuing his or her rights diligently and
    51  that some extraordinary circumstance prevented the timely filing of  the
    52  motion;  (B)  that  the  facts  upon which the motion is predicated were
    53  unknown to the defendant or his or her attorney and could not have  been
    54  ascertained  by the exercise of due diligence prior to the expiration of
    55  the statute of limitations; or (C) considering all circumstances of  the
    56  case including but not limited to evidence of the defendant's guilt, the
        A. 10131                            9

     1  impact  of granting or denying such motion upon public confidence in the
     2  criminal justice system, or upon the safety or welfare of the community,
     3  and the defendant's diligence in seeking to obtain the requested proper-
     4  ty  or  related  relief,  the  interests  of  justice would be served by
     5  considering the motion;
     6    (iii) the defendant is challenging a judgment convicting him or her of
     7  an offense that is not a felony defined in section 10.00  of  the  penal
     8  law; or
     9    (iv)  upon  a finding by the court that the property requested in this
    10  motion would be available through other means through reasonable efforts
    11  by the defendant to obtain such property.
    12    1-a.] 4. (a) [(1)] Where the [defendant's] applicant's motion requests
    13  the performance of a forensic DNA test on specified evidence,  and  upon
    14  the  court's determination that any evidence containing deoxyribonucleic
    15  acid ("DNA") was secured in  connection  with  the  trial  or  the  plea
    16  resulting  in  the  judgment,  the court shall grant the application for
    17  forensic DNA testing of such evidence upon its determination that [if a]
    18  had the DNA test [had] results been [conducted on such evidence, and  if
    19  the  results  had been admitted in the trial resulting in the judgment,]
    20  available at the time of trial or plea, there [exists] is  a  reasonable
    21  probability  that  the  verdict  would  have  been more favorable to the
    22  [defendant] applicant.
    23    [(2) Where the defendant's motion for forensic DNA testing  of  speci-
    24  fied  evidence  is made following a plea of guilty and entry of judgment
    25  thereon convicting him or her of: (A)  a  homicide  offense  defined  in
    26  article one hundred twenty-five of the penal law, any felony sex offense
    27  defined in article one hundred thirty of the penal law, a violent felony
    28  offense  as defined in paragraph (a) of subdivision one of section 70.02
    29  of the penal law, or (B) any other felony offense to  which  he  or  she
    30  pled guilty after being charged in an indictment or information in supe-
    31  rior court with one or more of the offenses listed in clause (A) of this
    32  subparagraph, then the court shall grant such a motion upon its determi-
    33  nation  that  evidence containing DNA was secured in connection with the
    34  investigation or prosecution of the defendant, and if  a  DNA  test  had
    35  been  conducted  on  such evidence and the results had been known to the
    36  parties prior to the entry of the defendant's plea and judgment thereon,
    37  there exists a substantial probability  that  the  evidence  would  have
    38  established  the defendant's actual innocence of the offense or offenses
    39  that are the subject of the defendant's motion; provided, however, that:
    40    (i) the court shall consider whether the defendant had the opportunity
    41  to request such testing prior to entering a guilty plea, and,  where  it
    42  finds  that  the defendant had such opportunity and unjustifiably failed
    43  to do so, the court may deny such motion; and
    44    (ii) a court shall deny the defendant's motion for forensic DNA  test-
    45  ing  where the defendant has made his or her motion more than five years
    46  after entry of the judgment of conviction; except  that  the  limitation
    47  period  may be tolled if the defendant has shown: (A) that he or she has
    48  been pursuing his or her rights diligently and that  some  extraordinary
    49  circumstance  prevented the timely filing of the motion for forensic DNA
    50  testing; (B) that the facts upon which the  motion  is  predicated  were
    51  unknown  to the defendant or his or her attorney and could not have been
    52  ascertained by the exercise of due diligence prior to the expiration  of
    53  this statute of limitations; or (C) considering all circumstances of the
    54  case including but not limited to evidence of the defendant's guilt, the
    55  impact  of granting or denying such motion upon public confidence in the
    56  criminal justice system, or upon the safety or welfare of the community,
        A. 10131                           10

     1  and the defendant's diligence in seeking to obtain the requested proper-
     2  ty or related relief, the interests of justice would be served by  toll-
     3  ing such limitation period.]
     4    (b)  Where  the applicant's motion for relief requests the performance
     5  of any other testing of  forensic  evidence  or  any  physical  evidence
     6  secured  in  the case, the court shall grant the application for testing
     7  of such evidence, upon its determination that had the results of testing
     8  of forensic or other physical evidence been available  at  the  time  of
     9  trial  or plea, there is a reasonable probability that the verdict would
    10  have been more favorable to the applicant.
    11    (c) (i) In conjunction with the filing of a motion under this subdivi-
    12  sion, the court may direct the people to provide the [defendant]  appli-
    13  cant  and  his  or her counsel with information in the possession of the
    14  people  concerning  the  current  physical  location  of  the  specified
    15  evidence  and if the specified evidence no longer exists or the physical
    16  location of the specified evidence is unknown, a representation to  that
    17  effect and information and documentary evidence in the possession of the
    18  people  concerning  the  last  known physical location of such specified
    19  evidence.
    20    (ii) If there is a finding by the court that the specified evidence no
    21  longer exists or the physical location of  such  specified  evidence  is
    22  unknown,  [such  information in and of itself shall not be a factor from
    23  which any inference unfavorable to the people may be drawn by the  court
    24  in  deciding a motion under this section] the court may grant the appli-
    25  cant's motion and vacate the judgment upon a finding by the  court  that
    26  such evidence is unavailable due to malfeasance or neglect.
    27    (iii)  The  court,  on  motion  of the [defendant] applicant, may also
    28  issue a subpoena duces tecum directing a  public  or  private  hospital,
    29  laboratory  or  other  entity  to produce such specified evidence in its
    30  possession and/or information and documentary evidence in its possession
    31  concerning the location and status of such specified evidence.
    32    [(c)] (d) In response to a motion under this paragraph, upon notice to
    33  the parties and to the entity required to perform the search  the  court
    34  may  order  an  entity  that has access to the combined DNA index system
    35  ("CODIS") or its successor system to compare a DNA profile obtained from
    36  probative biological material gathered in connection with  the  investi-
    37  gation or prosecution of the [defendant] applicant against DNA databanks
    38  by  keyboard searches, or a similar method that does not involve upload-
    39  ing, upon a court's determination that (1) such  profile  complies  with
    40  federal  bureau  of  investigation  or state requirements, whichever are
    41  applicable and as such requirements are applied to law enforcement agen-
    42  cies seeking such a comparison, and that the data meet state  DNA  index
    43  system  and/or  national  DNA index system criteria as such criteria are
    44  applied to law enforcement agencies seeking such a comparison and (2) if
    45  such comparison had been conducted, [and if the results had been  admit-
    46  ted  in  the  trial resulting in the judgment,] a reasonable probability
    47  exists that the verdict would have been more favorable to  the  [defend-
    48  ant,  or  in  a case involving a plea of guilty, if the results had been
    49  available to the defendant prior to the plea, a  reasonable  probability
    50  exists  that  the  conviction  would not have resulted] applicant.   For
    51  purposes of this subdivision, a "keyboard search" shall mean a search of
    52  a DNA profile against the databank in which the profile that is searched
    53  is not uploaded to or maintained in the databank.
    54    [2. If it appears by conceded or  uncontradicted  allegations  of  the
    55  moving  papers or of the answer, or by unquestionable documentary proof,
    56  that there are circumstances which require denial  thereof  pursuant  to
        A. 10131                           11

     1  subdivision  two of section 440.10 or subdivision two of section 440.20,
     2  the court must summarily deny the motion. If it appears that  there  are
     3  circumstances authorizing, though not requiring, denial thereof pursuant
     4  to  subdivision  three of section 440.10 or subdivision three of section
     5  440.20, the court may in its discretion either (a)  summarily  deny  the
     6  motion, or (b) proceed to consider the merits thereof.]
     7    [3.]  5.  Upon  considering  the  merits of the motion, the court must
     8  grant it without conducting a hearing and vacate  the  judgment  or  set
     9  aside the sentence, as the case may be, if:
    10    (a) The moving papers allege a ground constituting legal basis for the
    11  motion; and
    12    (b)  Such  ground, if based upon the existence or occurrence of facts,
    13  is supported by sworn allegations thereof; and
    14    (c) The sworn allegations of fact essential to support the motion  are
    15  either  conceded by the people to be true or are conclusively substanti-
    16  ated by unquestionable documentary proof.
    17    [4.] 6. Upon considering the merits of the motion, the court may  deny
    18  it without conducting a hearing if:
    19    (a)  The  moving  papers  do  not allege any ground constituting legal
    20  basis for the motion; or
    21    (b) [The motion is based upon the existence or occurrence of facts and
    22  the moving papers do not contain  sworn  allegations  substantiating  or
    23  tending to substantiate all the essential facts, as required by subdivi-
    24  sion one; or
    25    (c)]  An allegation of fact essential to support the motion is conclu-
    26  sively refuted by unquestionable documentary proof; or
    27    [(d)] (c) An allegation of fact essential to support the motion (i) is
    28  contradicted by a court record or other official document[, or  is  made
    29  solely  by  the  defendant  and is unsupported by any other affidavit or
    30  evidence,] and (ii) under these and all the other circumstances  attend-
    31  ing the case, there is no reasonable possibility that such allegation is
    32  true.
    33    [5.] 7. If the court does not determine the motion pursuant to [subdi-
    34  visions  two,  three or four] subdivision five or six, it must conduct a
    35  hearing and make findings of fact essential to the determination  there-
    36  of.  The [defendant] applicant has a right to be present at such hearing
    37  but may waive such right in writing. If he or she does not so  waive  it
    38  and  if  he  or she is confined in a prison or other institution of this
    39  state, the court must cause him or her to be produced at such hearing.
    40    [6.] 8. At such a hearing, the [defendant] applicant has the burden of
    41  proving by a preponderance of  the  evidence  every  fact  essential  to
    42  support  the  motion. At the hearing, either party shall receive a daily
    43  copy of the hearing minutes, upon request.
    44    [7.] 9. Notwithstanding any other provision of this section, when  the
    45  applicant  raises  a colorable claim of relief pursuant to this article,
    46  the court shall not summarily deny the motion on  the  ground  that  the
    47  applicant previously moved for relief under this article.
    48    10.  Regardless  of  whether  a hearing was conducted, the court, upon
    49  determining the motion, must set forth on the  record  its  findings  of
    50  fact, its conclusions of law and the reasons for its determination.
    51    § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
    52  amended  by chapter 671 of the laws of 1971 and as renumbered by chapter
    53  516 of the laws of 1986, is amended to read as follows:
    54    4. An order, entered pursuant to  [section  440.40,  setting  aside  a
    55  sentence  other  than  one  of death, upon motion of the People] article
        A. 10131                           12

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