LBD14606-01-9
S. 7255 2
2019, and subdivision 9 as added by section 4 of part OO of chapter 55
of the laws of 2019, is amended to read as follows:
§ 440.10 Motion to vacate judgment.
1. At any time after the entry of a judgment OBTAINED AT TRIAL OR BY
PLEA, the court in which it was entered may, upon motion of the [defend-
ant] APPLICANT, vacate such judgment upon the ground that:
(a) The court did not have jurisdiction of the action or of the person
of the [defendant] APPLICANT; or
(b) The judgment was procured by duress, misrepresentation or fraud on
the part of the court or a prosecutor or a person acting for or in
behalf of a court or a prosecutor; or
(c) [Material evidence] EVIDENCE adduced at a trial resulting in the
judgment OR THAT WAS RELIED UPON BY ANY PARTY AS A BASIS FOR A PLEA
AGREEMENT was false [and was, prior to the entry of the judgment, known
by the prosecutor or by the court to be false]; or
(d) [Material evidence] EVIDENCE adduced by the people at a trial
resulting in the judgment OR THAT WAS RELIED UPON BY ANY PARTY AS A
BASIS FOR A PLEA AGREEMENT was procured in violation of the [defend-
ant's] APPLICANT'S rights under the constitution of this state or of the
United States; or
(e) During the proceedings resulting in the judgment, the [defendant]
APPLICANT, by reason of mental disease or defect, was incapable of
understanding or participating in such proceedings; or
(f) Improper [and prejudicial] conduct not appearing in the record
occurred during a trial resulting in the judgment which conduct, if it
had appeared in the record, would have [required] MADE POSSIBLE a
reversal of the judgment upon an appeal therefrom; or
(g) New evidence has been discovered [since the entry of a judgment
based upon a verdict of guilty after trial, which could not have been
produced by the defendant at the trial even with due diligence on his
part and which] OR BECOME AVAILABLE THAT, WHEN VIEWED ALONE OR WITH
OTHER EVIDENCE, is of such character as to create a REASONABLE probabil-
ity that had such evidence been received at the trial OR DISCOVERED
PRIOR TO TRIAL OR PLEA AGREEMENT THAT the verdict OR PLEA would have
been more favorable to the [defendant; provided that a motion based upon
such ground must be made with due diligence after the discovery of such
alleged new evidence] APPLICANT. TYPES OF NEW EVIDENCE SHALL INCLUDE,
BUT NOT BE LIMITED TO NEWLY AVAILABLE FORENSIC EVIDENCE OR EVIDENCE THAT
HAS EITHER BEEN REPUDIATED BY THE EXPERT WHO ORIGINALLY PROVIDED THE
OPINION AT A HEARING OR TRIAL OR THAT HAS BEEN UNDERMINED BY LATER
SCIENTIFIC RESEARCH OR TECHNOLOGICAL ADVANCES; or
(g-1) [Forensic DNA] IN CASES INVOLVING THE FORENSIC testing of
evidence performed since the entry of a judgment, [(1) in the case of a
defendant convicted after a guilty plea, the court has determined that
the defendant has demonstrated a substantial probability that the
defendant was actually innocent of the offense of which he or she was
convicted, or (2) in the case of a defendant convicted after a trial,]
the court has determined that there exists a reasonable probability that
the verdict OR PLEA OFFER would have been more favorable to the [defend-
ant] APPLICANT, OR THE APPLICANT WOULD HAVE REJECTED THE PLEA OFFER.
(h) The judgment was obtained in violation of a right of the [defend-
ant] APPLICANT under the constitution of this state or of the United
States, INCLUDING, BUT NOT LIMITED TO, A JUDGMENT ENTERED, WHETHER UPON
TRIAL OR GUILTY PLEA, AGAINST AN APPLICANT WHO IS ACTUALLY INNOCENT. AN
APPLICANT IS ACTUALLY INNOCENT WHERE THE APPLICANT PROVES BY A PREPON-
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DERANCE OF THE EVIDENCE THAT NO REASONABLE JURY OF THE APPLICANT'S PEERS
WOULD HAVE FOUND THE APPLICANT GUILTY BEYOND A REASONABLE DOUBT; or
(i) The judgment is a conviction where the [arresting charge was under
section 240.37 (loitering for the purpose of engaging in a prostitution
offense, provided that the defendant was not alleged to be loitering for
the purpose of patronizing a person for prostitution or promoting pros-
titution) or 230.00 (prostitution) or 230.03 (prostitution in a school
zone) of the penal law, and the defendant's] APPLICANT'S participation
in the offense was a result of having been a victim of sex trafficking
under section 230.34 of the penal law, sex trafficking of a child under
section 230.34-a of the penal law, labor trafficking under section
135.35 of the penal law, aggravated labor trafficking under section
135.37 of the penal law, compelling prostitution under section 230.33 of
the penal law, or trafficking in persons under the Trafficking Victims
Protection Act (United States Code, title 22, chapter 78); provided that
(i) [a motion under this paragraph shall be made with due diligence,
after the defendant has ceased to be a victim of such trafficking or
compelling prostitution crime or has sought services for victims of such
trafficking or compelling prostitution crime, subject to reasonable
concerns for the safety of the defendant, family members of the defend-
ant, or other victims of such trafficking or compelling prostitution
crime that may be jeopardized by the bringing of such motion, or for
other reasons consistent with the purpose of this paragraph; and
(ii)] official documentation of the [defendant's] APPLICANT'S status
as a victim of SEX trafficking, LABOR TRAFFICKING, AGGRAVATED LABOR
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] APPLICANT'S partic-
ipation in the offense was a result of having been a victim of sex traf-
ficking, LABOR TRAFFICKING, AGGRAVATED LABOR TRAFFICKING, compelling
prostitution or trafficking in persons, but shall not be required for
granting a motion under this paragraph;
(II) A MOTION UNDER THIS PARAGRAPH, AND ALL PERTINENT PAPERS AND DOCU-
MENTS, SHALL BE CONFIDENTIAL AND MAY NOT BE MADE AVAILABLE TO ANY PERSON
OR PUBLIC OR PRIVATE AGENCY EXCEPT WHEN SPECIFICALLY AUTHORIZED BY THE
COURT; AND
(III) WHEN A MOTION IS FILED UNDER THIS PARAGRAPH, THE COURT MAY, UPON
THE CONSENT OF THE APPLICANT AND ALL OF THE INVOLVED STATE OR LOCAL
PROSECUTORIAL AGENCIES, CONSOLIDATE INTO ONE PROCEEDING A MOTION TO
VACATE JUDGMENTS IMPOSED BY DISTINCT OR MULTIPLE CRIMINAL COURTS.
(j) The judgment is a conviction for [a class A or unclassified] ANY
misdemeanor entered prior to the effective date of this paragraph [and
satisfies the ground prescribed in paragraph (h) of this subdivision]
THAT RESULTED IN ONGOING COLLATERAL CONSEQUENCES, INCLUDING POTENTIAL OR
ACTUAL IMMIGRATION CONSEQUENCES. There shall be a rebuttable presump-
tion that a conviction by plea to such an offense was not knowing,
voluntary and intelligent, [based on ongoing collateral consequences,
including potential or actual immigration consequences, and there] AND
THUS RENDERED THE PLEA CONSTITUTIONALLY DEFECTIVE PURSUANT TO PARAGRAPH
(H) OF THIS SUBDIVISION. THERE shall be a rebuttable presumption that a
conviction by verdict TO SUCH AN OFFENSE constitutes cruel and unusual
punishment under section five of article one of the state constitution
based on such consequences AND THUS RENDERED THE VERDICT CONSTITU-
TIONALLY DEFECTIVE PURSUANT TO PARAGRAPH (H) OF THIS SUBDIVISION; or
(J-1) THE JUDGMENT IS A CONVICTION FOR A CLASS D OR E FELONY ENTERED
PRIOR TO THE EFFECTIVE DATE OF THIS PARAGRAPH FOR WHICH THE SENTENCE
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IMPOSED WAS ONE YEAR, AND SUCH SENTENCE RESULTED IN ONGOING COLLATERAL
CONSEQUENCES, INCLUDING POTENTIAL OR ACTUAL IMMIGRATION CONSEQUENCES.
THERE SHALL BE A REBUTTABLE PRESUMPTION THAT A CONVICTION BY PLEA TO
SUCH AN OFFENSE WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT, AND THUS
RENDERED THE PLEA CONSTITUTIONALLY DEFECTIVE PURSUANT TO PARAGRAPH (H)
OF THIS SUBDIVISION. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT A
CONVICTION BY VERDICT TO SUCH AN OFFENSE CONSTITUTES CRUEL AND UNUSUAL
PUNISHMENT UNDER SECTION FIVE OF ARTICLE ONE OF THE STATE CONSTITUTION
BASED ON SUCH CONSEQUENCES, AND THUS RENDERED THE VERDICT CONSTITU-
TIONALLY DEFECTIVE PURSUANT TO PARAGRAPH (H) OF THIS SUBDIVISION; OR
(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, OR A MISDEMEANOR UNDER ARTICLE TWO HUNDRED TWENTY-ONE OF THE PENAL
LAW, in which case the court shall presume that a conviction by plea for
the aforementioned offenses was not knowing, voluntary and intelligent
if it has severe or ongoing consequences, including but not limited to
potential or actual immigration consequences, AND THUS RENDERED THE PLEA
CONSTITUTIONALLY DEFECTIVE PURSUANT TO PARAGRAPH (H) OF THIS SUBDIVI-
SION; and shall presume that a conviction by verdict for the aforemen-
tioned offenses constitutes cruel and unusual punishment under section
five of article one of the state constitution, based on those conse-
quences, AND THUS RENDERED THE VERDICT CONSTITUTIONALLY DEFECTIVE PURSU-
ANT TO PARAGRAPH (H) OF THIS SUBDIVISION. The people may rebut these
presumptions[.]; OR
(L) ANY OFFENSE IN THE STATE OF NEW YORK THAT AN INTERMEDIATE APPEL-
LATE COURT, COURT OF APPEALS, OR UNITED STATES FEDERAL COURT HAS DEEMED
IN VIOLATION OF THE CONSTITUTION OF THIS STATE OR OF THE UNITED STATES,
OR ANY OTHER RIGHT UNDER STATE OR FEDERAL LAW.
2. Notwithstanding the provisions of subdivision one, the court [must]
MAY deny a motion to vacate a judgment when:
(a) The ground or issue raised upon the motion was previously deter-
mined on the merits upon an appeal from the judgment, unless since the
time of such appellate determination there has been a retroactively
effective change in the law controlling such issue. HOWEVER, IF ALL OF
THE EVIDENCE CURRENTLY BEFORE THE COURT WAS NOT DULY CONSIDERED PREVI-
OUSLY BY THE COURT, THE COURT SHALL GRANT THE MOTION OR ORDER THE HEAR-
ING; or
(b) The judgment is, at the time of the motion, appealable or pending
on appeal, and sufficient facts appear on the record with respect to the
ground or issue raised upon the motion to permit adequate review thereof
upon such an appeal UNLESS THE ISSUE RAISED IN SUCH A MOTION IS INEFFEC-
TIVE ASSISTANCE OF COUNSEL. This paragraph shall not apply to a motion
under paragraph (i), (J), (K) OR (L) of subdivision one of this section;
or
(c) [Although sufficient facts appear on the record of the proceedings
underlying the judgment to have permitted, upon appeal from such judg-
ment, adequate review of the ground or issue raised upon the motion, no
such appellate review or determination occurred owing to the defendant's
unjustifiable failure to take or perfect an appeal during the prescribed
period or to his unjustifiable failure to raise such ground or issue
upon an appeal actually perfected by him; or
(d)] The ground or issue raised relates solely to the validity of the
sentence and not to the validity of the conviction. IN SUCH CASE, THE
COURT SHALL DEEM THE MOTION TO HAVE BEEN MADE PURSUANT TO SECTION 440.20
OF THIS ARTICLE.
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[3. Notwithstanding the provisions of subdivision one, the court may
deny a motion to vacate a judgment when:
(a) Although facts in support of the ground or issue raised upon the
motion could with due diligence by the defendant have readily been made
to appear on the record in a manner providing adequate basis for review
of such ground or issue upon an appeal from the judgment, the defendant
unjustifiably failed to adduce such matter prior to sentence and the
ground or issue in question was not subsequently determined upon appeal.
This paragraph does not apply to a motion based upon deprivation of the
right to counsel at the trial or upon failure of the trial court to
advise the defendant of such right, or to a motion under paragraph (i)
of subdivision one of this section; or
(b) The ground or issue raised upon the motion was previously deter-
mined on the merits upon a prior motion or proceeding in a court of this
state, other than an appeal from the judgment, or upon a motion or
proceeding in a federal court; unless since the time of such determi-
nation there has been a retroactively effective change in the law
controlling such issue; or
(c) Upon a previous motion made pursuant to this section, the defend-
ant was in a position adequately to raise the ground or issue underlying
the present motion but did not do so.]
(D) Although the court may deny the motion under any of the circum-
stances specified in this subdivision, in the interest of justice and
for good cause shown it may in its discretion grant the motion if it is
otherwise meritorious and vacate the judgment.
[4.] 3. If the court grants the motion, it must, except as provided in
subdivision [five] FOUR or [six] FIVE of this section, vacate the judg-
ment, and must EITHER:
(A) dismiss AND SEAL the accusatory instrument, or
(B) order a new trial, or
(C) take such other action as is appropriate in the circumstances.
[5.] 4. Upon granting the motion upon the ground, as prescribed in
paragraph (g) of subdivision one, that newly discovered evidence creates
a probability that had such evidence been received at the trial the
verdict would have been more favorable to the [defendant] APPLICANT in
that the conviction would have been for a lesser offense than the one
contained in the verdict, the court may either:
(a) Vacate the judgment and order a new trial; or
(b) With the consent of the people, modify the judgment by reducing it
to one of conviction for such lesser offense. In such case, the court
must re-sentence the [defendant] APPLICANT accordingly.
[6.] 5. If the court grants a motion under [paragraph (i) or] para-
graph [(k)] (H), (I), (J), (K) OR (L) of subdivision one of this
section, it must vacate the judgment [and] ON THE MERITS, dismiss the
accusatory instrument, SEAL THE JUDGMENT, and may take such additional
action as is appropriate in the circumstances.
[7.] 6. Upon a new trial resulting from an order vacating a judgment
pursuant to this section, the indictment is deemed to contain all the
counts and to charge all the offenses which it contained and charged at
the time the previous trial was commenced, regardless of whether any
count was dismissed by the court in the course of such trial, except (a)
those upon or of which the [defendant] APPLICANT was acquitted or deemed
to have been acquitted, and (b) those dismissed by the order vacating
the judgment, and (c) those previously dismissed by an appellate court
upon an appeal from the judgment, or by any court upon a previous post-
judgment motion.
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[8.] 7. Upon an order which vacates a judgment based upon a plea of
guilty to an accusatory instrument or a part thereof, but which does not
dismiss the entire accusatory instrument, the criminal action is, in the
absence of an express direction to the contrary, restored to its
[prepleading] PRE-PLEADING status and the accusatory instrument is
deemed to contain all the counts and to charge all the offenses which it
contained and charged at the time of the entry of the plea, except those
subsequently dismissed under circumstances specified in paragraphs (b)
and (c) of subdivision six. Where the plea of guilty was entered and
accepted, pursuant to subdivision three of section 220.30, upon the
condition that it constituted a complete disposition not only of the
accusatory instrument underlying the judgment vacated but also of one or
more other accusatory instruments against the [defendant] APPLICANT then
pending in the same court, the order of vacation completely restores
such other accusatory instruments; and such is the case even though such
order dismisses the main accusatory instrument underlying the judgment.
[9.] 8. Upon granting of a motion pursuant to paragraph (j) of subdi-
vision one of this section, the court [may] MUST VACATE THE JUDGMENT AND
MAY, IN ADDITION TO THE REMEDIES IN SUBDIVISION THREE OF THIS SECTION,
either:
(a) With the consent of the people, [vacate the judgment or] modify
the judgment by reducing it to one of conviction for a lesser offense OR
ALLOW THE APPLICANT TO REPLEAD TO A DISPOSITION AGREED UPON BY THE
PARTIES; or
(b) [Vacate the judgment and order a new trial wherein the defendant
enters] PERMIT THE APPLICANT TO ENTER a plea to the same offense [in
order to permit the court to] AND resentence the [defendant] APPLICANT
in accordance with the amendatory provisions of subdivision one-a of
section 70.15 of the penal law.
9. UPON GRANTING OF A MOTION PURSUANT TO PARAGRAPH J-1 OF SUBDIVISION
ONE OF THIS SECTION, THE COURT MUST VACATE THE JUDGMENT AND PERMIT THE
APPLICANT TO ENTER A PLEA TO THE SAME OFFENSE IN ORDER TO PERMIT THE
COURT TO RESENTENCE THE APPLICANT TO THREE HUNDRED SIXTY-FOUR DAYS.
10. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT
MUST ORDER A HEARING AND ADDRESS THE MERITS OF ANY CLAIM FOR RELIEF WHEN
THE APPLICANT ASSERTS THAT, IN LIGHT OF ALL AVAILABLE EVIDENCE, THERE
EXISTS A COLORABLE CLAIM THAT HE OR SHE IS ACTUALLY INNOCENT. WHEN THE
APPLICANT RAISES AN ACTUAL INNOCENCE CLAIM BASED ON, IN WHOLE OR PART,
NEW EVIDENCE OF ACTUAL INNOCENCE, THE COURT MAY NOT SUMMARILY DENY THE
MOTION ON THE GROUND THAT THE APPLICANT PREVIOUSLY MOVED FOR RELIEF
UNDER THIS ARTICLE.
§ 3. Section 440.20 of the criminal procedure law, subdivision 1 as
amended by chapter 1 of the laws of 1995, is amended to read as follows:
§ 440.20 Motion to set aside sentence; by [defendant] APPLICANT.
1. At any time after the entry of a judgment, the court in which the
judgment was entered may, upon motion of the [defendant] APPLICANT, set
aside the sentence upon the ground that it was unauthorized, illegally
imposed, EXCEEDED THE MAXIMUM ALLOWED BY LAW, OBTAINED OR IMPOSED IN
VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS, or WAS otherwise
invalid as a matter of law. Where the judgment includes a sentence of
death, the court may also set aside the sentence upon any of the grounds
set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of
section 440.10 as applied to a separate sentencing proceeding under
section 400.27, provided, however, that to the extent the ground or
grounds asserted include one or more of the aforesaid paragraphs of
subdivision one of section 440.10, the court must also apply [subdivi-
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sions] SUBDIVISION two [and three] of section 440.10, other than para-
graph [(d)] (C) of [subdivision two of] such [section] SUBDIVISION, in
determining the motion. In the event the court enters an order granting
a motion to set aside a sentence of death under this section, the court
must either direct a new sentencing proceeding in accordance with
section 400.27 or, to the extent that the defendant cannot be resen-
tenced to death consistent with the laws of this state or the constitu-
tion of this state or of the United States, resentence the defendant to
life imprisonment without parole or to a sentence of imprisonment for
the class A-I felony of murder in the first degree other than a sentence
of life imprisonment without parole. Upon granting the motion upon any
of the grounds set forth in the aforesaid paragraphs of subdivision one
of section 440.10 and setting aside the sentence, the court must afford
the people a reasonable period of time, which shall not be less than ten
days, to determine whether to take an appeal from the order setting
aside the sentence of death. The taking of an appeal by the people stays
the effectiveness of that portion of the court's order that directs a
new sentencing proceeding.
2. Notwithstanding the provisions of subdivision one, the court
[must] MAY deny such a motion when the ground or issue raised thereupon
was previously determined on the merits upon an appeal from the judgment
or sentence, unless since the time of such appellate determination there
has been a retroactively effective change in the law controlling such
issue. HOWEVER, IF ALL OF THE EVIDENCE CURRENTLY BEFORE THE COURT WAS
NOT DULY CONSIDERED PREVIOUSLY BY THE COURT, THE COURT SHALL NOT DENY
THE MOTION TO VACATE AND INSTEAD SHALL ORDER A HEARING OR GRANT THE
MOTION. EVEN IF THE COURT HAS ALREADY CONSIDERED ALL OF THE EVIDENCE
CURRENTLY BEFORE THE COURT, THE COURT IN THE INTEREST OF JUSTICE AND FOR
GOOD CAUSE SHOWN MAY GRANT THE MOTION IF IT IS OTHERWISE MERITORIOUS.
3. [Notwithstanding the provisions of subdivision one, the court may
deny such a motion when the ground or issue raised thereupon was previ-
ously determined on the merits upon a prior motion or proceeding in a
court of this state, other than an appeal from the judgment, or upon a
prior motion or proceeding in a federal court, unless since the time of
such determination there has been a retroactively effective change in
the law controlling such issue. Despite such determination, however,
the court in the interest of justice and for good cause shown, may in
its discretion grant the motion if it is otherwise meritorious.
4.] An order setting aside a sentence pursuant to this section does
not affect the validity or status of the underlying conviction, and
after entering such an order the court must resentence the [defendant]
APPLICANT in accordance with the law. THE DATE OF SUCH RESENTENCING,
FOLLOWING THE GRANT OF A MOTION PURSUANT TO THIS SECTION, SHALL CONTROL
FOR PURPOSES OF DETERMINING AN APPLICANT'S PREDICATE STATUS UNDER PARA-
GRAPH (B) OF SUBDIVISION ONE OF SECTION 70.04, PARAGRAPH (B) OF SUBDIVI-
SION ONE OF SECTION 70.06, SECTION 70.08, PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION 70.10, AND SECTION 70.70 OF THE PENAL LAW.
§ 4. Section 440.30 of the criminal procedure law, subdivisions 1 and
1-a as amended by chapter 19 of the laws of 2012 and the opening para-
graph of paragraph (b) of subdivision 1 as amended by section 10 of part
LLL of chapter 59 of the laws of 2019, is amended to read as follows:
§ 440.30 Motion to vacate judgment and to set aside sentence; procedure.
1. (a) [A] AN APPLICATION FOR A motion to vacate a judgment pursuant
to section 440.10 OR 440.11 of this article and a motion to set aside a
sentence pursuant to section 440.20 of this article must be made in
writing BY THE APPLICANT OR THEIR COUNSEL TO THE JUDGE OR JUSTICE WHO
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IMPOSED THE ORIGINAL SENTENCE and upon reasonable notice to the people.
[Upon the motion, a defendant] IF, AT THE TIME OF SUCH PERSON'S REQUEST
TO APPLY FOR RELIEF PURSUANT TO THIS ARTICLE, THE ORIGINAL SENTENCING
JUDGE OR JUSTICE NO LONGER WORKS IN THE COURT IN WHICH THE ORIGINAL
SENTENCE WAS IMPOSED, THEN THE REQUEST SHALL BE RANDOMLY ASSIGNED TO
ANOTHER JUDGE OR JUSTICE OF THE COURT IN WHICH THE ORIGINAL SENTENCE WAS
IMPOSED.
(B) UPON SUBMITTING AN APPLICATION FOR RELIEF UNDER THIS ARTICLE, THE
APPLICANT MAY REQUEST THAT THE COURT ASSIGN HIM OR HER AN ATTORNEY FOR
THE PREPARATION OF AND PROCEEDINGS ON THE MOTION TO VACATE JUDGMENT AND
TO SET ASIDE THE SENTENCE PURSUANT TO THIS ARTICLE. THE COURT SHALL
ASSIGN DEFENSE COUNSEL IF THE APPLICANT IS INDIGENT OR OTHERWISE QUALI-
FIES FOR FREE REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF SUBDI-
VISION ONE OF SECTION SEVEN HUNDRED SEVENTEEN AND SUBDIVISION FOUR OF
SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW AND THE RELATED
PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW.
(C) UPON MAKING A DETERMINATION AS TO ASSIGNMENT OF COUNSEL, THE COURT
SHALL ALSO PROMPTLY ORDER THE DISCLOSURE OF DISCOVERY TO THE PERSON
APPLYING FOR RELIEF AND HIS OR HER COUNSEL. THE ORDER OF DISCLOSURE OF
DISCOVERY SHALL INCLUDE THAT:
(I) THE PEOPLE PRODUCE ALL ITEMS AND INFORMATION THAT RELATE TO THE
SUBJECT MATTER OF THE CASE AND ARE IN THE POSSESSION, CUSTODY AND
CONTROL OF THE PROSECUTION OR PERSONS UNDER THEIR DIRECTION OR CONTROL
AND MAKE AVAILABLE FOR INSPECTION ANY PHYSICAL EVIDENCE SECURED IN
CONNECTION WITH THE INVESTIGATION OR PROSECUTION OF THE APPLICANT,
INCLUDING ALL EVIDENCE THAT WOULD BE DISCOVERABLE PURSUANT TO SECTION
245.20 OF THIS PART; AND
(II) THE APPLICANT'S PRIOR TRIAL AND APPELLATE COUNSEL SHALL MAKE
AVAILABLE TO THE APPLICANT OR HIS OR HER COUNSEL THEIR COMPLETE FILES
RELATING TO THE CASE; AND
(III) COURT CLERKS AND PROBATION DEPARTMENTS SHALL MAKE AVAILABLE TO
THE APPLICANT OR HIS OR HER COUNSEL THE COURT FILES OR PROBATION RECORDS
PERTAINING TO THE CASE; AND
(IV) NOTHING IN THIS SECTION SHALL PRECLUDE THE COURT FROM CONDUCTING
AN IN CAMERA INSPECTION OF EVIDENCE AND ISSUING A PROTECTIVE ORDER
PURSUANT TO SECTION 245.70 OF THIS PART AT THE REQUEST OF THE PROSE-
CUTION OR DEFENSE.
(V) THE DISCOVERY ORDER WILL REQUIRE THAT THE PEOPLE AND PRIOR DEFENSE
COUNSEL TURN OVER ALL RELEVANT DISCOVERY TO THE PERSON APPLYING FOR
RELIEF OR THEIR COUNSEL NO LATER THAN THIRTY DAYS FROM THE ISSUANCE OF
THE COURT'S DISCOVERY ORDER.
(D) (I) AN APPLICANT who is in a position adequately to raise more
than one ground should raise every such ground upon which he or she
intends to challenge the judgment or sentence. If the motion is based
upon the existence or occurrence of facts, the motion papers [must] MAY
contain sworn allegations thereof, whether by the [defendant] APPLICANT
or by another person or persons. Such sworn allegations may be based
upon personal knowledge of the affiant or upon information and belief,
provided that in the latter event the affiant must state the sources of
such information and the grounds of such belief. The [defendant] APPLI-
CANT may further submit documentary evidence or information supporting
or tending to support the allegations of the moving papers.
(II) The people may file with the court, and in such case must serve a
copy thereof upon the [defendant] APPLICANT or his or her counsel, if
any, an answer denying or admitting any or all of the allegations of the
S. 7255 9
motion papers, and may further submit documentary evidence or informa-
tion refuting or tending to refute such allegations.
(III) After all papers of both parties have been filed, and after all
documentary evidence or information, if any, has been submitted, the
court must consider the same for the purpose of ascertaining whether the
motion is determinable without a hearing to resolve questions of fact.
[(b) In conjunction with the filing or consideration of a motion to
vacate a judgment pursuant to section 440.10 of this article by a
defendant convicted after a trial, in cases where the court has ordered
an evidentiary hearing upon such motion, the court may order that the
people produce or make available for inspection property in its
possession, custody, or control that was secured in connection with the
investigation or prosecution of the defendant upon credible allegations
by the defendant and a finding by the court that such property, if
obtained, would be probative to the determination of defendant's actual
innocence, and that the request is reasonable. The court shall deny or
limit such a request upon a finding that such a request, if granted,
would threaten the integrity or chain of custody of property or the
integrity of the processes or functions of a laboratory conducting DNA
testing, pose a risk of harm, intimidation, embarrassment, reprisal, or
other substantially negative consequences to any person, undermine the
proper functions of law enforcement including the confidentiality of
informants, or on the basis of any other factor identified by the court
in the interests of justice or public safety. The court shall further
ensure that any property produced pursuant to this paragraph is subject
to a protective order, where appropriate. The court shall deny any
request made pursuant to this paragraph where:
(i) (1) the defendant's motion pursuant to section 440.10 of this
article does not seek to demonstrate his or her actual innocence of the
offense or offenses of which he or she was convicted that are the
subject of the motion, or (2) the defendant has not presented credible
allegations and the court has not found that such property, if obtained,
would be probative to the determination of the defendant's actual inno-
cence and that the request is reasonable;
(ii) the defendant has made his or her motion after five years from
the date of the judgment of conviction; provided, however, that this
limitation period shall be tolled for five years if the defendant is in
custody in connection with the conviction that is the subject of his or
her motion, and provided further that, notwithstanding such limitation
periods, the court may consider the motion if the defendant has shown:
(A) that he or she has been pursuing his or her rights diligently and
that some extraordinary circumstance prevented the timely filing of the
motion; (B) that the facts upon which the motion is predicated were
unknown to the defendant or his or her attorney and could not have been
ascertained by the exercise of due diligence prior to the expiration of
the statute of limitations; or (C) considering all circumstances of the
case including but not limited to evidence of the defendant's guilt, the
impact of granting or denying such motion upon public confidence in the
criminal justice system, or upon the safety or welfare of the community,
and the defendant's diligence in seeking to obtain the requested proper-
ty or related relief, the interests of justice would be served by
considering the motion;
(iii) the defendant is challenging a judgment convicting him or her of
an offense that is not a felony defined in section 10.00 of the penal
law; or
S. 7255 10
(iv) upon a finding by the court that the property requested in this
motion would be available through other means through reasonable efforts
by the defendant to obtain such property.
1-a.] 2. (a) [(1)] (I) Where the [defendant's] APPLICANT'S motion
requests the performance of a forensic DNA test on specified evidence,
and upon the court's determination that any evidence containing deoxyri-
bonucleic acid ("DNA") was secured in connection with the trial OR THE
PLEA resulting in the judgment, the court shall grant the application
for forensic DNA testing of such evidence [upon its determination that
if a DNA test had been conducted on such evidence, and if the results
had been admitted in the trial resulting in the judgment, there exists a
reasonable probability that the verdict would have been more favorable
to the defendant.
(2) Where the defendant's motion for forensic DNA testing of specified
evidence is made following a plea of guilty and entry of judgment there-
on convicting him or her of: (A) a homicide offense defined in article
one hundred twenty-five of the penal law, any felony sex offense defined
in article one hundred thirty of the penal law, a violent felony offense
as defined in paragraph (a) of subdivision one of section 70.02 of the
penal law, or (B) any other felony offense to which he or she pled guil-
ty after being charged in an indictment or information in superior court
with one or more of the offenses listed in clause (A) of this subpara-
graph, then the court shall grant such a motion upon its determination
that evidence containing DNA was secured in connection with the investi-
gation or prosecution of the defendant, and if a DNA test had been
conducted on such evidence and the results had been known to the parties
prior to the entry of the defendant's plea and judgment thereon, there
exists a substantial probability that the evidence would have estab-
lished the defendant's actual innocence of the offense or offenses that
are the subject of the defendant's motion; provided, however, that:
(i) the court shall consider whether the defendant had the opportunity
to request such testing prior to entering a guilty plea, and, where it
finds that the defendant had such opportunity and unjustifiably failed
to do so, the court may deny such motion; and
(ii) a court shall deny the defendant's motion for forensic DNA test-
ing where the defendant has made his or her motion more than five years
after entry of the judgment of conviction; except that the limitation
period may be tolled if the defendant has shown: (A) that he or she has
been pursuing his or her rights diligently and that some extraordinary
circumstance prevented the timely filing of the motion for forensic DNA
testing; (B) that the facts upon which the motion is predicated were
unknown to the defendant or his or her attorney and could not have been
ascertained by the exercise of due diligence prior to the expiration of
this statute of limitations; or (C) considering all circumstances of the
case including but not limited to evidence of the defendant's guilt, the
impact of granting or denying such motion upon public confidence in the
criminal justice system, or upon the safety or welfare of the community,
and the defendant's diligence in seeking to obtain the requested proper-
ty or related relief, the interests of justice would be served by toll-
ing such limitation period].
(II) WHERE THE APPLICANT'S MOTION FOR RELIEF REQUESTS THE PERFORMANCE
OF ANY OTHER TESTING OF FORENSIC EVIDENCE OR ANY PHYSICAL EVIDENCE
SECURED IN THE CASE, THE JUDGE SHALL GRANT THE APPLICATION FOR TESTING
OF SUCH EVIDENCE, UNLESS THERE IS NO REASONABLE PROBABILITY THAT THE
TESTING OF THIS EVIDENCE COULD RESULT IN A DIFFERENT OR IMPROVED OUTCOME
FOR THE PERSON APPLYING FOR RELIEF.
S. 7255 11
(b) (I) In conjunction with the filing of a motion under this subdivi-
sion, the court may direct the people to provide the [defendant] APPLI-
CANT AND HIS OR HER COUNSEL with information in the possession of the
people concerning the current physical location of the specified
evidence and if the specified evidence no longer exists or the physical
location of the specified evidence is unknown, a representation to that
effect and information and documentary evidence in the possession of the
people concerning the last known physical location of such specified
evidence.
(II) If there is a finding by the court that the specified evidence no
longer exists or the physical location of such specified evidence is
unknown, [such information in and of itself shall not be a factor from
which any inference unfavorable to the people may be drawn by the court
in deciding a motion under this section] THE COURT SHALL GRANT THE
APPLICANT'S MOTION AND VACATE THE JUDGMENT.
(III) The court, on motion of the [defendant] APPLICANT, may also
issue a subpoena duces tecum directing a public or private hospital,
laboratory or other entity to produce such specified evidence in its
possession and/or information and documentary evidence in its possession
concerning the location and status of such specified evidence.
(c) In response to a motion under this paragraph, upon notice to the
parties and to the entity required to perform the search the court may
order an entity that has access to the combined DNA index system
("CODIS") or its successor system to compare a DNA profile obtained from
probative biological material gathered in connection with the investi-
gation or prosecution of the [defendant] APPLICANT against DNA databanks
by keyboard searches, or a similar method that does not involve upload-
ing, upon a court's determination that (1) such profile complies with
federal bureau of investigation or state requirements, whichever are
applicable and as such requirements are applied to law enforcement agen-
cies seeking such a comparison, and that the data meet state DNA index
system and/or national DNA index system criteria as such criteria are
applied to law enforcement agencies seeking such a comparison and (2) if
such comparison had been conducted, [and if the results had been admit-
ted in the trial resulting in the judgment,] a reasonable probability
exists that the verdict would have been more favorable to the [defend-
ant, or in a case involving a plea of guilty, if the results had been
available to the defendant prior to the plea, a reasonable probability
exists that the conviction would not have resulted] APPLICANT. For
purposes of this subdivision, a "keyboard search" shall mean a search of
a DNA profile against the databank in which the profile that is searched
is not uploaded to or maintained in the databank.
[2. If it appears by conceded or uncontradicted allegations of the
moving papers or of the answer, or by unquestionable documentary proof,
that there are circumstances which require denial thereof pursuant to
subdivision two of section 440.10 or subdivision two of section 440.20,
the court must summarily deny the motion. If it appears that there are
circumstances authorizing, though not requiring, denial thereof pursuant
to subdivision three of section 440.10 or subdivision three of section
440.20, the court may in its discretion either (a) summarily deny the
motion, or (b) proceed to consider the merits thereof.]
3. Upon considering the merits of the motion, the court must grant it
without conducting a hearing and vacate the judgment or set aside the
sentence, as the case may be, if:
(a) The moving papers allege a ground constituting legal basis for the
motion; and
S. 7255 12
(b) Such ground, if based upon the existence or occurrence of facts,
is supported by sworn allegations thereof; and
(c) The sworn allegations of fact essential to support the motion are
either conceded by the people to be true or are conclusively substanti-
ated by unquestionable documentary proof.
4. Upon considering the merits of the motion, the court may deny it
without conducting a hearing if:
(a) The moving papers do not allege any ground constituting legal
basis for the motion; or
(b) [The motion is based upon the existence or occurrence of facts and
the moving papers do not contain sworn allegations substantiating or
tending to substantiate all the essential facts, as required by subdivi-
sion one; or
(c)] An allegation of fact essential to support the motion is conclu-
sively refuted by unquestionable documentary proof; or
[(d)] (C) An allegation of fact essential to support the motion (i) is
contradicted by a court record or other official document[, or is made
solely by the defendant and is unsupported by any other affidavit or
evidence,] and (ii) under these and all the other circumstances attend-
ing the case, there is no reasonable possibility that such allegation is
true.
5. If the court does not determine the motion pursuant to subdivisions
two, three or four, it must conduct a hearing and make findings of fact
essential to the determination thereof. The [defendant] APPLICANT has a
right to be present at such hearing but may waive such right in writing.
If he OR SHE does not so waive it and if he OR SHE is confined in a
prison or other institution of this state, the court must cause him OR
HER to be produced at such hearing.
6. At such a hearing, the [defendant] APPLICANT has the burden of
proving by a preponderance of the evidence every fact essential to
support the motion. AT THE HEARING, DEFENSE COUNSEL SHALL RECEIVE A
DAILY COPY OF THE HEARING MINUTES.
7. Regardless of whether a hearing was conducted, the court, upon
determining the motion, must set forth on the record its findings of
fact, its conclusions of law and the reasons for its determination.
§ 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
amended by chapter 671 of the laws of 1971 and as renumbered by chapter
516 of the laws of 1986, is amended to read as follows:
4. An order, entered pursuant to [section 440.40, setting aside a
sentence other than one of death, upon motion of the People] ARTICLE
FOUR HUNDRED FORTY OF THIS TITLE, SHALL BE AUTHORIZED TO AN INTERMEDIATE
APPELLATE COURT AS A MATTER OF RIGHT.
§ 6. Subdivision 5 of section 450.10 of the criminal procedure law is
REPEALED.
§ 7. Severability. If any provision of this act, or any application of
any provision of this act, is held to be invalid, that shall not affect
the validity or effectiveness of any other provision of this act, or of
any other application of any provision of this act, which can be given
effect without that provision or application; and to that end, the
provisions and applications of this act are severable.
§ 8. This act shall take effect immediately.
