S T A T E O F N E W Y O R K ________________________________________________________________________ 729 2011-2012 Regular Sessions I N S E N A T E (PREFILED) January 5, 2011 ___________ Introduced by Sen. PERALTA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to establishing the actual innocence justice act of 2011 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Short title. This act shall be known as the "actual inno- 2 cence justice act of 2011". 3 S 2. Subparagraph (ii) of paragraph (i) of subdivision 1 of section 4 440.10 of the criminal procedure law, as added by chapter 332 of the 5 laws of 2010, is amended and a new paragraph (j) is added to read as 6 follows: 7 (ii) official documentation of the defendant's status as a victim of 8 sex trafficking or trafficking in persons at the time of the offense 9 from a federal, state or local government agency shall create a presump- 10 tion that the defendant's participation in the offense was a result of 11 having been a victim of sex trafficking or trafficking in persons, but 12 shall not be required for granting a motion under this paragraph[.]; OR 13 (J) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH 14 HE OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT IS 15 ACTUALLY INNOCENT WHERE IT IS ESTABLISHED BY CLEAR AND CONVINCING 16 EVIDENCE THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT UNDER 17 A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE. 18 S 3. Subdivision 4 of section 440.10 of the criminal procedure law, as 19 amended by chapter 332 of the laws of 2010, is amended to read as 20 follows: 21 4. If the court grants the motion, it must, except as provided in 22 subdivision five or six of this section, vacate the judgment, and must 23 dismiss the accusatory instrument, or order a new trial, or take such 24 other action as is appropriate in the circumstances. IF THE DEFENDANT EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04653-02-1 S. 729 2 1 HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU- 2 ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND- 3 ANT OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND IN 4 LIGHT OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE ACCUSATORY 5 INSTRUMENT. 6 S 4. Section 440.10 of the criminal procedure law is amended by adding 7 a new subdivision 9 to read as follows: 8 9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST 9 ADDRESS THE MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT CAN SHOW, 10 IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB- 11 ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT. 12 S 5. This act shall take effect immediately.