S T A T E   O F   N E W   Y O R K
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                                 3492--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2013
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Codes -- recommitted to the Committee on Codes in accord-
  ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the criminal procedure law, in relation to  establishing
  the actual innocence justice act of 2014

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title.  This act shall be known as the "actual  inno-
cence justice act of 2014".
  S  2.  Subparagraph  (ii) of paragraph (i) of subdivision 1 of section
440.10 of the criminal procedure law, as added by  chapter  332  of  the
laws  of  2010,  is  amended and a new paragraph (j) is added to read as
follows:
  (ii) official documentation of the defendant's status as a  victim  of
sex  trafficking  or  trafficking  in persons at the time of the offense
from a federal, state or local government agency shall create a presump-
tion that the defendant's participation in the offense was a  result  of
having  been  a victim of sex trafficking or trafficking in persons, but
shall not be required for granting a motion under this paragraph[.]; OR
  (J) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH
HE OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT  IS
ACTUALLY  INNOCENT  WHERE  IT  IS  ESTABLISHED  BY  CLEAR AND CONVINCING
EVIDENCE THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT  UNDER
A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE.
  S 3. Subdivision 4 of section 440.10 of the criminal procedure law, as
amended  by  chapter  332  of  the  laws  of 2010, is amended to read as
follows:
  4. If the court grants the motion, it  must,  except  as  provided  in
subdivision  five  or six of this section, vacate the judgment, and must

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01072-03-4
              

A. 3492--A                          2

dismiss the accusatory instrument, or order a new trial,  or  take  such
other  action  as is appropriate in the circumstances.  IF THE DEFENDANT
HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU-
ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND-
ANT  OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND IN
LIGHT OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE  ACCUSATORY
INSTRUMENT.
  S 4. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 9 to read as follows:
  9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST
ADDRESS  THE  MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT CAN SHOW,
IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB-
ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
  S 5. This act shall take effect immediately.