Bill Text: NY S07868 | 2009-2010 | General Assembly | Introduced

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Bill Title: Relates to claims for conviction, compensation for claimants who were wrongly incarcerated and the expungement of criminal records for unjustly convicted claimants.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-06-15 - ADVANCED TO THIRD READING [S07868 Detail]

Download: New_York-2009-S07868-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7868
                                   I N  S E N A T E
                                     May 18, 2010
                                      ___________
       Introduced  by  Sen. SCHNEIDERMAN -- read twice and ordered printed, and
         when printed to be committed to the Committee on Judiciary
       AN ACT to amend the court of claims  act,  in  relation  to  claims  for
         conviction;  and  to  amend the criminal procedure law, in relation to
         the expungement of criminal records
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1. Subdivision 7 of section 8-b of the court of claims act is
    2  renumbered subdivision 8 and subdivision 4, paragraphs (c)  and  (d)  of
    3  subdivision 5 and subdivision 6, as added by chapter 1009 of the laws of
    4  1984,  are amended and two new subdivisions 7 and 9 are added to read as
    5  follows:
    6    4. The claim shall state facts in  sufficient  detail  to  permit  the
    7  court  to  find  that  claimant is likely to succeed at trial in proving
    8  that (a) he did not commit any of the acts [charged  in  the  accusatory
    9  instrument] SUBMITTED TO THE FACTFINDER or his acts or omissions charged
   10  in  the accusatory instrument did not constitute a felony or misdemeanor
   11  against the state, and (b) he did not by his own conduct cause or  bring
   12  about  his  conviction.    A  CONFESSION  OR ADMISSION LATER FOUND TO BE
   13  FALSE, OR A PLEA OF GUILTY TO A CRIME THAT THE CLAIMANT DID NOT  COMMIT,
   14  DOES NOT CONSTITUTE "CAUSING ONE'S CONVICTION" PURSUANT TO THIS SUBDIVI-
   15  SION.  The  claim  shall be verified by the claimant. If the court finds
   16  after reading the claim that claimant is not likely to succeed at trial,
   17  it shall dismiss the claim, either on its own motion or on the motion of
   18  the state.
   19    (c) he did not commit any of  the  acts  [charged  in  the  accusatory
   20  instrument] SUBMITTED TO THE FACTFINDER or his acts or omissions charged
   21  in  the accusatory instrument did not constitute a felony or misdemeanor
   22  against the state; and
   23    (d) he did not by his own conduct cause or bring about his conviction.
   24  CONVICTIONS RESULTING FROM ANY OF THE  FOLLOWING  SHALL  NOT  CONSTITUTE
   25  CONDUCT CAUSING OR BRINGING ABOUT HIS CONVICTION UNDER THIS ACT: (I) THE
   26  NEGLIGENCE  OF  HIS  DEFENSE  ATTORNEY;  (II)  A  COERCED OR INVOLUNTARY
   27  CONFESSION; (III) THE UNCORROBORATED TESTIMONY OF A PERSON OTHER THAN  A
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD16767-02-0
       S. 7868                             2
    1  LAW  ENFORCEMENT OFFICER OF AN ALLEGED ADMISSION OF GUILT BY THE DEFEND-
    2  ANT; OR (IV) A CLAIMANT'S HAVING ENTERED A PLEA OF GUILTY, PROVIDED THAT
    3  THE CLAIMANT IS ABLE TO DEMONSTRATE THAT THE PLEA WAS ENTERED DUE TO THE
    4  NEGLIGENCE OF HIS ATTORNEY OR AS THE RESULT OF DURESS OR COERCION.
    5    6. If the court finds that the claimant is entitled to a judgment, [it
    6  shall  award  damages  in such sum of money as the court determines will
    7  fairly and reasonably compensate him.] THE CLAIMANT MAY ELECT AS COMPEN-
    8  SATION TO RECEIVE A FIXED SUM OF SEVENTY-FIVE THOUSAND DOLLARS FOR  EACH
    9  YEAR THAT HE OR SHE WAS INCARCERATED, THE TOTAL TO BE COMPUTED BY MULTI-
   10  PLYING  THE  NUMBER OF YEARS OF INCARCERATION AND FRACTION THEREOF TIMES
   11  SEVENTY-FIVE THOUSAND DOLLARS. THIS FIGURE SHALL BE ADJUSTED TO THE YEAR
   12  OF EXONERATION IN ACCORDANCE WITH CHANGES IN THE COST OF  LIVING,  USING
   13  THE  CONSUMER  PRICE  INDEX  (FOR ALL URBAN CONSUMERS, CPU-I, U.S., CITY
   14  AVERAGE, ALL ITEMS, 1982-84=100) PUBLISHED BY THE UNITED  STATES  BUREAU
   15  OF  LABOR  STATISTICS.   THE ADJUSTMENT SHALL BE COMPUTED BY MULTIPLYING
   16  SEVENTY-FIVE THOUSAND DOLLARS TIMES THE CONSUMER PRICE INDEX AVERAGE FOR
   17  THE YEAR OF EXONERATION DIVIDED BY THE CONSUMER PRICE INDEX AVERAGE  FOR
   18  TWO  THOUSAND  TEN,  WHICH IS THE YEAR OF ENACTMENT OF THIS SECTION.  IN
   19  THE ALTERNATIVE, THE CLAIMANT MAY WAIVE HIS OR HER RIGHT TO RECEIVE  THE
   20  FIXED  ANNUAL  SUM SO COMPUTED AND, IN LIEU THEREOF, HE OR SHE MAY ELECT
   21  TO HAVE THE COURT ASSESS HIS OR HER DAMAGES, IN  WHICH  CASE  THE  COURT
   22  SHALL  AWARD DAMAGES IN SUCH SUM AS THE COURT DETERMINES WILL FAIRLY AND
   23  REASONABLY COMPENSATE HIM OR HER.  IN DETERMINING COMPENSATION BY EITHER
   24  METHOD, THERE SHALL BE NO OFFSET OR ADJUSTMENT TO THE TOTAL COMPENSATION
   25  AWARDED FOR ANY EXPENSES INCURRED RELATED TO SECURING OR MAINTAINING THE
   26  CLAIMANT'S CUSTODY OR ANY EXPENSES RELATED TO PROVIDING FOOD,  CLOTHING,
   27  OR MEDICAL SERVICES TO THE CLAIMANT.  IN DETERMINING THE RELEVANT PERIOD
   28  OF  INCARCERATION,  ANY  PORTION OF THE PERIOD OF INCARCERATION THAT WAS
   29  ATTRIBUTABLE TO A SEPARATE AND LAWFUL CONVICTION RESULTING IN A  CONCUR-
   30  RENT  TERM  OF  IMPRISONMENT SHALL BE EXCLUDED.  IN ADDITION TO AWARDING
   31  DAMAGES BY ONE OF THE METHODS SET FORTH ABOVE, THE COURT SHALL ORDER THE
   32  IMMEDIATE SEALING, AT THE EXPENSE OF THE STATE OF NEW YORK, OF  ANY  AND
   33  ALL  CRIMINAL  RECORDS  RELATED  TO THE WRONGFUL ARREST, CONVICTION, AND
   34  SENTENCE OF THE CLAIMANT.  SUCH RECORDS SHALL BE MADE AVAILABLE ONLY  TO
   35  THE  CLAIMANT  AND  THE  STATE IN ANY UNJUST CONVICTION AND IMPRISONMENT
   36  CLAIM UPON AN APPLICATION TO THE COURT.
   37    7. UPON THE ENTRY OF JUDGMENT IN FAVOR OF THE  CLAIMANT  FOR  WRONGFUL
   38  CONVICTION  OR  A  PARDON BASED ON WRONGFUL CONVICTION, THE STATE OF NEW
   39  YORK SHALL, BASED ON THE CLAIMANT'S NEED, IMMEDIATELY MAKE AVAILABLE  TO
   40  THE  CLAIMANT  SUBSISTENCE FUNDS AND REENTRY SERVICES.  REENTRY SERVICES
   41  AVAILABLE UNDER THIS SECTION SHALL BE AT A MINIMUM  THE  SAME  AS  THOSE
   42  RECEIVED  BY FELONS UPON RELEASE, AND INCLUDE BUT ARE NOT LIMITED TO JOB
   43  TRAINING, EDUCATION, HEALTH CARE, AND ASSISTANCE IN ACQUIRING AFFORDABLE
   44  HOUSING AND CHILD CUSTODY.
   45    9. IF A DECEASED PERSON WOULD BE ENTITLED TO COMPENSATION  UNDER  THIS
   46  SECTION  IF LIVING, INCLUDING A PERSON WHO RECEIVED A POSTHUMOUS PARDON,
   47  THE PERSON'S HEIRS, LEGAL REPRESENTATIVES, AND ESTATE  ARE  ENTITLED  TO
   48  SUCH COMPENSATION.
   49    S  2.  The  criminal  procedure law is amended by adding a new section
   50  440.70 to read as follows:
   51  S 440.70 EXPUNGEMENT OF CRIMINAL RECORDS.
   52    IN THE EVENT THAT A DEFENDANT HAS BEEN ENTITLED TO A JUDGMENT  IN  HIS
   53  FAVOR  UNDER  SUBDIVISION FIVE OF SECTION EIGHT-B OF THE COURT OF CLAIMS
   54  ACT, THE COURT IN WHICH HIS CONVICTION WAS REVERSED  OR  VACATED  OR  IN
   55  WHICH  THE  ACCUSATORY INSTRUMENT WAS DISMISSED SHALL ORDER THE EXPUNGE-
   56  MENT OF ALL CRIMINAL RECORDS RELATED TO THE WRONGFUL ARREST, CONVICTION,
       S. 7868                             3
    1  AND SENTENCE AT THE EXPENSE OF THE STATE. SUCH RECORDS SHALL  BE  AVAIL-
    2  ABLE ONLY TO A CLAIMANT AND THE STATE IN AN UNJUST CONVICTION AND IMPRI-
    3  SONMENT CLAIM UPON APPLICATION TO THE COURT.
    4    S 3. This act shall take effect on the one hundred eightieth day after
    5  it shall have become a law.