S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    266
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced by Sens. MYRIE, BAILEY, HOYLMAN, RAMOS, SALAZAR -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Codes
 
 AN  ACT  to  amend the criminal procedure law, in relation to motions to
   vacate judgment; and to repeal certain provisions of such law relating
   thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  criminal  procedure  law  is amended by adding a new
 section 440.11 to read as follows:
 § 440.11 MOTION TO VACATE JUDGMENT; CHANGE IN THE LAW.
   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 APPLI-
 CANT, VACATE SUCH JUDGMENT UPON THE GROUND THAT:
   (A) THE APPLICANT WAS CONVICTED OF ANY OFFENSE IN  THE  STATE  OF  NEW
 YORK  WHICH  HAS  BEEN  SUBSEQUENTLY  DECRIMINALIZED AND IS THUS A LEGAL
 NULLITY.
   (B) THERE HAS BEEN A CHANGE, WHETHER SUBSTANTIVE OR PROCEDURAL, IN THE
 LAW OR LAWS APPLIED IN THE PROCESS LEADING TO THE APPLICANT'S CONVICTION
 WHERE SUFFICIENT REASON EXISTS TO ALLOW RETROACTIVE APPLICATION  OF  THE
 CHANGED LEGAL STANDARD.
   2. IF THE COURT GRANTS A MOTION UNDER THIS SECTION, IT MUST VACATE THE
 JUDGMENT  ON  THE  MERITS,  DISMISS  THE ACCUSATORY INSTRUMENT, SEAL THE
 JUDGMENT, AND MAY TAKE SUCH ADDITIONAL ACTION AS IS APPROPRIATE  IN  THE
 CIRCUMSTANCES.
   §  2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph  (h)
 of  subdivision  1,  paragraph  (b)  of  subdivision 2, paragraph (a) of
 subdivision 3 and subdivision 4 as amended and subdivisions 7 and  8  as
 renumbered by chapter 332 of the laws of 2010, paragraph (i) of subdivi-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01711-01-1

 S. 266                              2
 
 sion  1  as amended by section 3 of part OO of chapter 55 of the laws of
 2019, subparagraph (ii) of paragraph (i) and paragraph (j)  of  subdivi-
 sion  1 and subdivision 6 as amended by chapter 131 of the laws of 2019,
 paragraph  (k)  of  subdivision 1 as added by chapter 132 of the laws of
 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

 S. 266                              3
 
 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-
 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

 S. 266                              4
 
 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
 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

 S. 266                              5

   (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.
   [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

 S. 266                              6
 
 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.
   [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

 S. 266                              7
 
 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-
 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.

 S. 266                              8

   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
 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.

 S. 266                              9
 
   (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
 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;

 S. 266                             10

   (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
   (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

 S. 266                             11

 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.
   (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.]

 S. 266                             12
 
   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
   (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.