S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8790
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             November 25, 2019
                                ___________
 
 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
 
   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".
   §  2. Paragraph (k) of subdivision 1 of section 440.10 of the criminal
 procedure law, as added by chapter 132 of the laws of 2019,  is  amended
 and a new paragraph (l) is added to read as follows:
   (k)  The  judgment  occurred prior to the effective date of this para-
 graph and is a conviction for an offense as defined in subparagraph  (i)
 or  (ii) of paragraph (k) of subdivision three of section 160.50 of this
 part, in which case the court shall presume that a  conviction  by  plea
 for  the aforementioned offenses was not knowing, voluntary and intelli-
 gent if it has severe or ongoing consequences, including but not limited
 to potential or actual immigration consequences, and shall presume  that
 a  conviction  by  verdict  for  the aforementioned offenses constitutes
 cruel and unusual punishment under section five of article  one  of  the
 state  constitution,  based  on those consequences. The people may rebut
 these presumptions[.]; OR
   (L) 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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13966-01-9
              

 A. 8790                             2
 
   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
 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 10 to read as follows:
   10.  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
 PROBABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
   § 5. This act shall take effect immediately.