S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4689
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2017
                                ___________
 
 Introduced  by  M. of A. O'DONNELL, RICHARDSON -- read once and referred
   to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to  establishing
   the actual innocence justice act of 2017
 
   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 2017".
   §  2.  Subparagraph  (ii) of paragraph (i) of subdivision 1 of section
 440.10 of the criminal procedure law, as amended by chapter 368  of  the
 laws  of  2015,  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
 trafficking,  compelling  prostitution  or trafficking in persons at the
 time of the offense from a federal, state  or  local  government  agency
 shall  create  a  presumption  that the defendant's participation in the
 offense was a result of having been a victim of sex trafficking, compel-
 ling prostitution 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.
   § 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
 dismiss  the  accusatory  instrument, or order a new trial, or take such
 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.
              

                                                            LBD00070-01-7

 A. 4689                             2
 
 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.
   § 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.
   § 5. This act shall take effect immediately.