S. 7548 2
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 adduced at a trial] EVIDENCE THAT WAS LIKELY
RELIED UPON BY A FACT FINDER resulting in the judgment AT TRIAL OR THAT
WAS LIKELY 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 prose-
cutor or by the court to be false]; or
(d) [Material evidence adduced by the people at a trial] EVIDENCE THAT
WAS LIKELY RELIED UPON BY A FACT FINDER resulting in the judgment AT
TRIAL OR THAT WAS LIKELY RELIED UPON BY ANY PARTY AS A BASIS FOR A PLEA
AGREEMENT was procured in violation of the [defendant'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-
S. 7548 3
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 [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) official documentation of the [defendant's] APPLICANT'S status as
a victim of sex trafficking, labor trafficking, aggravated labor traf-
ficking, 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 participation in
the offense was a result of having been a victim of sex trafficking,
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 [entity] AGENCY except [where] WHEN specifically
authorized by the court; and
(iii) when a motion is filed under this paragraph, the court may, upon
the consent of the petitioner and all of the INVOLVED state [and] OR
local prosecutorial agencies [that prosecuted each matter], consolidate
into one proceeding a motion to vacate judgments imposed by distinct or
multiple criminal courts; or
(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.
There shall be a rebuttable presumption that a conviction by plea to
such an offense was not knowing, voluntary and intelligent, based on
ongoing collateral consequences, including potential or actual immi-
gration consequences, and there shall be a rebuttable presumption that a
conviction by verdict constitutes cruel and unusual punishment under
section five of article one of the state constitution based on such
consequences; or
(k) The judgment occurred prior to the effective date of the laws of
two thousand [twenty-one] TWENTY-THREE that amended this paragraph and
is a conviction for an offense as defined in [subparagraphs] SUBPARA-
GRAPH (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of
section 160.50 of this part, OR A MISDEMEANOR UNDER THE FORMER 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 immi-
gration consequences, and shall presume that a conviction by verdict for
the aforementioned offenses constitutes cruel and unusual punishment
under section five of article one of the state constitution, based on
those consequences. The people may rebut these presumptions[.]; OR
(L) ANY OFFENSE IN THE STATE OF NEW YORK THAT AN INTERMEDIATE APPEL-
LATE COURT, COURT OF APPEALS, OR UNITED STATES FEDERAL COURT WITH JURIS-
DICTION OVER NEW YORK STATE LAW ISSUES HAS DEEMED IN VIOLATION OF THE
S. 7548 4
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 upon such 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 or her unjustifiable failure to raise such ground or
issue upon an appeal actually perfected by him or her unless the issue
raised upon such motion is ineffective assistance of counsel; 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.
[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.
S. 7548 5
[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. [In the case of a motion
granted under paragraph (i) of subdivision one of this section, the
court must vacate the judgment on the merits because the defendant's
participation in the offense was a result of having been a victim of
trafficking.
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.
[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 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
S. 7548 6
(b) Vacate the judgment and order a new trial wherein the [defendant]
APPLICANT enters a plea to the same offense in order to permit the court
to resentence the [defendant] APPLICANT in accordance with the amendato-
ry provisions of subdivision one-a of section 70.15 of the penal law.
§ 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-
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,
S. 7548 7
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.
§ 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 ASSIGNMENT OF COUNSEL 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 A PRO SE APPLICANT TO THE JUDGE OR
JUSTICE WHO IMPOSED THE ORIGINAL SENTENCE and upon reasonable notice to
the people. [Upon the motion, a defendant]
(A) THE COURT SHALL ASSIGN DEFENSE COUNSEL IN CASES WHERE THERE IS A
COLORABLE CLAIM OF RELIEF ACCORDING TO THIS ARTICLE, IN ACCORDANCE WITH
SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW. FOR THE PURPOSE OF
THIS SECTION, A COLORABLE CLAIM IS A CLAIM THAT, TAKING THE FACTS
ALLEGED IN THE APPLICATION AS TRUE AND VIEWED IN A LIGHT MOST FAVORABLE
TO THE APPLICANT, WOULD ENTITLE THE APPLICANT TO RELIEF.
(B) IF THE JUDGE DECIDES NOT TO ASSIGN COUNSEL, THEY SHALL STATE THE
REASONS FOR DENYING THE REQUEST FOR ASSIGNMENT OF COUNSEL IN WRITING.
(C) IF, AT THE TIME OF SUCH APPLICANT'S REQUEST FOR ASSIGNMENT OF
COUNSEL, 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.
(D) APPLICANTS ALREADY REPRESENTED BY COUNSEL, EITHER APPOINTED PURSU-
ANT TO SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW OR OTHERWISE
RETAINED, ARE NOT REQUIRED TO FILE AN APPLICATION FOR ASSIGNMENT OF
COUNSEL.
2. UPON THE REQUEST OF THE APPLICANT OR HIS OR HER DEFENSE COUNSEL,
THE COURT SHALL ORDER:
(A) THE PEOPLE TO MAKE AVAILABLE A COPY OF ITS FILE OF THE CASE,
INCLUDING ANY PHYSICAL EVIDENCE IN THE PEOPLE'S POSSESSION AND GRAND
JURY MINUTES;
(B) THE APPLICANT'S PRIOR TRIAL AND APPELLATE DEFENSE COUNSEL TO MAKE
AVAILABLE THEIR COMPLETE FILES RELATING TO THE CASE;
(C) COURT CLERKS AND PROBATION DEPARTMENTS TO MAKE AVAILABLE THE COURT
FILES OR PROBATION RECORDS RELATING TO THE CASE; AND
(D) ANY LAW ENFORCEMENT AGENCY INVOLVED WITH THE CASE TO TURN OVER ITS
FILES OF THE CASE, INCLUDING POLICE REPORTS, WITNESS STATEMENTS,
EVIDENCE VOUCHERS, OR ANY OTHER RELEVANT RECORDS OR EVIDENCE AT ITS
DISPOSAL.
(E) THE COURT SHALL FURTHER ENSURE THAT ANY DISCLOSURE OF EVIDENCE OR
PROPERTY ORDERED PURSUANT TO THIS SUBDIVISION MAY BE SUBJECT TO A
PROTECTIVE ORDER AS DEFINED IN SECTION 245.70 OF THIS PART, WHERE APPRO-
PRIATE.
(F) 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.
S. 7548 8
3. (A) 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.
(B) 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.
(C) 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
S. 7548 9
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
(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.] 4. (a) [(1)] 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 deoxyribonucleic
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]
HAD THE DNA test [had] RESULTS been [conducted on such evidence, and if
the results had been admitted in the trial resulting in the judgment,]
AVAILABLE AT THE TIME OF TRIAL OR PLEA, there [exists] IS a reasonable
probability that the verdict would have been more favorable to the
[defendant] APPLICANT.
[(2) Where the defendant's motion for forensic DNA testing of speci-
fied evidence is made following a plea of guilty and entry of judgment
thereon 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 guilty after being charged in an indictment or information in supe-
rior court with one or more of the offenses listed in clause (A) of this
subparagraph, then the court shall grant such a motion upon its determi-
nation that evidence containing DNA was secured in connection with the
investigation 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
established 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
S. 7548 10
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.]
(b) 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 COURT SHALL GRANT THE APPLICATION FOR TESTING
OF SUCH EVIDENCE, UPON ITS DETERMINATION THAT HAD THE RESULTS OF TESTING
OF FORENSIC OR OTHER PHYSICAL EVIDENCE BEEN AVAILABLE AT THE TIME OF
TRIAL OR PLEA, THERE IS A REASONABLE PROBABILITY THAT THE VERDICT WOULD
HAVE BEEN MORE FAVORABLE TO THE APPLICANT.
(C) (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 MAY GRANT THE APPLI-
CANT'S MOTION AND VACATE THE JUDGMENT UPON A FINDING BY THE COURT THAT
SUCH EVIDENCE IS UNAVAILABLE DUE TO MALFEASANCE OR NEGLECT.
(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)] (D) 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
S. 7548 11
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.] 5. 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.] 6. 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.] 7. If the court does not determine the motion pursuant to [subdi-
visions two, three or four] SUBDIVISION FIVE OR SIX, it must conduct a
hearing and make findings of fact essential to the determination there-
of. 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.] 8. 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, EITHER PARTY SHALL RECEIVE A DAILY
COPY OF THE HEARING MINUTES, UPON REQUEST.
[7.] 9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, WHEN THE
APPLICANT RAISES A COLORABLE CLAIM OF RELIEF PURSUANT TO THIS ARTICLE,
THE COURT SHALL NOT SUMMARILY DENY THE MOTION ON THE GROUND THAT THE
APPLICANT PREVIOUSLY MOVED FOR RELIEF UNDER THIS ARTICLE.
10. 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.
S. 7548 12
§ 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. Section 216 of the judiciary law is amended by adding a new
subdivision 7 to read as follows:
7. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL COLLECT DATA AND REPORT
EVERY YEAR IN RELATION TO APPLICATIONS AND MOTIONS FILED PURSUANT TO
ARTICLE FOUR HUNDRED FORTY OF THE CRIMINAL PROCEDURE LAW, BROKEN DOWN BY
EACH SECTION OF SUCH ARTICLE TO INCLUDE MOTIONS FILED PURSUANT TO
SECTIONS 440.10, 440.20, 440.40, 440.46, 440.46-A, AND 440.47 OF THE
CRIMINAL PROCEDURE LAW. INFORMATION TO BE COLLECTED AND DISCLOSED SHALL
INCLUDE THE RAW NUMBER OF BOTH APPLICATIONS AND/OR MOTIONS FILED IN EACH
COUNTY AND ON APPEAL IN EACH JUDICIAL DEPARTMENT. INFORMATION SHALL
INCLUDE THE TOP CONVICTION CHARGE FOR EACH APPLICATION OR MOTION; WHEN
PRO SE APPLICANTS REQUEST ASSIGNMENT OF COUNSEL PURSUANT TO SUBDIVISION
TWO OF SECTION 440.30 OF THE CRIMINAL PROCEDURE LAW, WHETHER OR NOT
COUNSEL WAS ASSIGNED; THE OUTCOME OF EACH MOTION FILED, WHETHER DENIED
WITHOUT HEARING, DENIED WITH HEARING, VACATUR GRANTED, OR OTHER; AND THE
AVERAGE LENGTH OF TIME MOTION UNDER ARTICLE FOUR HUNDRED FORTY OF THE
CRIMINAL PROCEDURE LAW REMAINS PENDING FOR EACH COUNTY. SUCH REPORT
SHALL AGGREGATE THE DATA COLLECTED BY COUNTY AND JUDICIAL DEPARTMENT.
THE DATA SHALL BE AGGREGATED IN ORDER TO PROTECT THE IDENTITY OF INDI-
VIDUAL APPLICANTS. THE REPORT SHALL BE RELEASED PUBLICLY AND PUBLISHED
ON THE WEBSITES OF THE OFFICE OF COURT ADMINISTRATION AND THE DIVISION
OF CRIMINAL JUSTICE SERVICES. THE FIRST REPORT SHALL BE PUBLISHED TWELVE
MONTHS AFTER THIS SUBDIVISION SHALL HAVE BECOME A LAW, AND SHALL INCLUDE
DATA FROM THE FIRST SIX MONTHS FOLLOWING THE EFFECTIVE DATE OF THIS
SUBDIVISION. REPORTS FOR SUBSEQUENT PERIODS SHALL BE PUBLISHED ANNUALLY
THEREAFTER.
§ 8. 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.
§ 9. This act shall take effect on the sixtieth day after it shall
have become a law.
