BILL NUMBER: S2079

SPONSOR: BENJAMIN
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to establishing the actual innocence justice act of 2019

 
PURPOSE:

This bill would permit the Court in which a judgment of conviction was
entered to grant a post-conviction motion to vacate a judgment based on
actual innocence.

 
SUMMARY OF PROVISIONS:

Section one of the bill entitles the act the "Actual Innocence Justice
Act of 2017".

Section two of the bill adds a new paragraph (j) to subdivision one of
section 440.10 of the Criminal Procedure Law to provide that actual
innocence shall be a ground upon which a defendant may base his or her
post-conviction motion.
              

Section three of the bill amends subdivision (4) of section 440.10 of
the Criminal Procedure Law to require in certain circumstances that the
court dismiss the accusatory instrument.

Section four of the bill adds a new paragraph (8) of section 440.10 to
require in certain circumstances the court address the merits of any
claim for relief.

Section five of the bill establishes the effective date.

 
EXISTING LAW:

 
JUSTIFICATION:

Over the past twenty years, 284 DNA exonerations of convicted innocents
in the United States have drawn the attention of citizens and legisla-
tures around the country to the phenomenon of wrongful convictions of
the innocent. According to the data provided by the Innocence Project,
twenty-six, or nearly 10%, of those 284 exonerations were in the State
of New York. In addition, the New York State Bar Association's Task
Force on Wrongful Convictions recently identified and studied fifty-
three "judicial/formal exonerations" over the last twenty-odd years,
thirty-one of them non-DNA exonerations. Thirty-nine additional non-DNA
exoneration have been identified in preparing this legislation, mainly
by examining the results of compensation actions pursuant to Court of
Claims Act § 8-b. Thus, at least ninety-five men and women have been
clearly identified in New York as having spent years, sometimes decades,
in prison for murders, rapes, and other serious crimes they did not
commit. A significant number of other reversals and vacaturs have
occurred where there was strong evidence of innocence, but for one
reason or another cannot be included in a set of clear-cut "exonera-
tions." Thus wrongful convictions are not a trivial problem in New York.
As Judge Lippman recently wrote in Hurrell-Harring v. State:  "Wrongful
conviction, the ultimate sign of a criminal justice system's breakdown
and failure, has been documented in too many cases." 2010 WL 1791000
(N.Y. May 6, 2010).

Many exonerations in New York were achieved through the litigation of
CPL § 440.10 motions, demonstrating that New York's post-conviction
statute is an excellent avenue of collateral relief for many innocent
individuals - a good model, in fact, for other states to follow. Yet it
has become clear that some state court judges are not providing justice
in such cases, often because of their interpretation of the procedural
limitations of the current law. In the case of Marty Tankleff, the lower
court denied Tankleffs motion to vacate judgment based on 440.10(1)(g)
and 440.10(1)(h). Tankleff s direct appeal of the verdict to the appel-
late division and a federal habeas appeal had also been previously
denied. In denying the motion based on 440.10(1) (g), the trial Court
found the defendant did not exercise due diligence in moving for a new
trial. The 440.10(1) (h) motion was denied based on the court's finding
that there exists no constitutional right to relief based on actual
innocence. If it had not been for the appellate division remitting the
case to the county court for a new trial, Tankleff s wrongful conviction
would most likely never have been heard due to the limited nature of the
few remedies available to him. It is intolerable that any person in New
York whose trial has been shown to have led to a manifest injustice
should remain in prison on a technicality under state law.

For individuals like Marty Tankleff, the Criminal Procedure Law current-
ly offers only limited hope for collateral relief by establishing a
series of post-conviction procedural roadblocks that, taken together,
can deprive an innocent person from having his or her innocence claim
fully and fairly aired. The tragic result--as graphically demonstrated
in hundreds of wrongful conviction cases throughout the country - is
that an innocent person can spend years or even decades behind bars
while the real perpetrator remains free to commit more crimes and
terrorize additional victims. This bill is intended to renew and
strengthen the authorization of state court judges, despite any and all
procedural or other technical obstacles, to re-visit and give a fair
hearing to any case that presents to the reasonable mind a serious doubt
about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various
jurisdictions around the country by way of a "freestanding" claim of
actual innocence on constitutional grounds. The Supreme Court has not
yet explicitly held that such a claim can be brought under the United
States Constitution. As Justice Roberts wrote for a 5-4 majority in DA's
Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a federal
right to be released upon proof of actual innocence exists is an open
question." But several state courts have held that such a claim exists
under their state constitutions (including Illinois, California, Connec-
ticut, Missouri, New Mexico, and Texas). The New York Court of Appeals
has yet to consider the issue directly, although a handful of trial
courts have begun to do so and found compelling grounds to recognize a
convicted person's right to post-conviction relief based on proof of
actual innocence under state law. In 2003, a New York state judge held
for the first time that Article I § 6 of the New York State Constitution
prohibits the execution or incarceration of an innocent person and that
a freestanding claim of actual innocence is therefore cognizable under
440.10(1) (h). People v. Cole, 1 Misc. 3d 531, 765 N.Y.S. 2d 477 (Sup.
Ct., Kings Cty. 2003). In 2009 two other trial court judges held simi-
larly and granted relief on the ground of actual innocence on constitu-
tional grounds under CPL 440.  10(1) (h), the movants having shown they
were innocent by clear and convincing evidence. People v. Bermudez, 2009
N.Y. Slip Op. 52302U, 25 Misc. 3d 1226A (Sup. Ct., N.Y. Cty., Nov. 9,
2009) People v.  Wheeler-Whichard, 2009 N.Y. Slip Op. 51647(U), (Sup.
Ct., Kings Cty., July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is now
an appropriate basis for New York courts to overturn a criminal
conviction under a newly added paragraph (i) of CPL § 440.10(1). The
judge is directed to grant relief 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 avail-
able evidence." Thus, the judge is to consider all relevant evidence
without regard to trial rules of admissibility. Paragraph (1)(4) is
amended to clarify that, as held in Cole, Bermudez, and Wheeler-Which-
ard, the proper remedy for such a finding is vacatur of the conviction
and dismissal of the indictment.

In addition, a new paragraph (8) clarifies that convicted people who can
demonstrate a reasonable probability that they are innocent will have
the right to challenge their convictions under the statute, notwith-
standing any other procedural and other technical provisions of the
statute that would have prevented them from doing so. Several states
have taken for granted that due process requires them to forgive these
"procedural defaults" where a likelihood of innocence is present. See,
e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn.  2001) Reedy v.
Wright, 60 Va. Cir. 18, 26 (Va. Cir. Ct. 2002) i State v. Pope, 80 P.3d
1232, 318 Mont. 383 (2003); Clay v. Dormire, 37 S.W.3d 214, 217 (Mo.
2000). This paragraph is intended to provide relief from procedural
defaults or other technical requirements in addition to, and independ-
ently of, any judicial finding that such relief is required under the
Due Process Clause of either the Federal or State Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants
with an opportunity to fully vindicate their rights and to provide a
post-conviction court with an opportunity to correct miscarriages of
justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of
justice with the greatest call on the Court's conscience is a long pris-
on sentence or execution of a person who is entirely innocent of the
crime for which he is being punished. These amendments are intended to
require judges to treat claims of actual innocence with the seriousness
they warrant, and to permit them to adjudicate reasonable claims of
innocence without becoming entangled in legal uncertainties and techni-
calities.

The grounds upon which a defendant can make a motion to vacate judgment
must be expanded. It is presumably a rare instance where one previously
convicted is able to later conclusively satisfy the court that he or she
in fact did not commit the criminal acts that form the basis of that
conviction. In these rare and exceptional cases, the administration of
justice would be deeply flawed if a set of procedural restrictions could
permanently foreclose any option of overturning a wrongful conviction
and offering a new trial to an innocent defendant. This bill is intended
to address these rare instances by creating an express provision, within
the existing CPL post-conviction framework, for "actual innocence" to be
adjudicated and true justice achieved.

 
LEGISLATIVE HISTORY:

2017-18: S.351/A4689
2015-2016 - S1299A
2013-2014 - S.49
2011-12: S.729-A
2009-10: S.6234-C Referred to Codes and Advanced to 3rd Reading

 
FISCAL IMPLICATIONS:

None

 
LOCAL FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately.