S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7422
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 25, 2025
                                ___________
 
 Introduced  by  M.  of  A.  WALKER, KIM, TAYLOR, FORREST, REYES, HEVESI,
   MITAYNES, ANDERSON, MAMDANI, JACKSON,  CLARK,  SIMON,  GONZALEZ-ROJAS,
   SEAWRIGHT,  R. CARROLL,  GALLAGHER,  BURDICK,  CRUZ,  EPSTEIN, HUNTER,
   MEEKS, WEPRIN,  KELLES,  ROSENTHAL,  OTIS,  COOK,  DINOWITZ,  SEPTIMO,
   GIBBS,  GLICK,  DAVILA, HYNDMAN, RAMOS, TAPIA, LUNSFORD, SIMONE, RAGA,
   SHIMSKY, ALVAREZ, DE LOS SANTOS, BORES, LEVENBERG  --  read  once  and
   referred to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, the county law and the judi-
   ciary  law,  in  relation to motions to vacate judgment; and to repeal
   certain provisions of the criminal procedure 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 two new
 sections 440.00 and 440.11 to read as follows:
 § 440.00 DEFINITION.
   AS USED IN THIS ARTICLE, THE TERM "APPLICANT" MEANS A PERSON CONVICTED
 OF A CRIME WHO IS APPLYING FOR RELIEF UNDER THIS ARTICLE.
 § 440.11 MOTION TO VACATE JUDGMENT; CHANGE IN THE LAW.
   1. AT ANY TIME AFTER THE ENTRY OF A JUDGMENT THE COURT IN WHICH IT WAS
 ENTERED MAY, UPON MOTION OF THE APPLICANT, VACATE SUCH CONVICTION:
   (A) UPON THE GROUND THAT THE APPLICANT WAS  CONVICTED  OF  AN  OFFENSE
 WHICH  HAS  BEEN  SUBSEQUENTLY DECRIMINALIZED UNLESS THE LEGISLATURE HAS
 EXPRESSLY PROVIDED THAT DECRIMINALIZATION SHALL APPLY PROSPECTIVELY ONLY
 AND SHALL NOT APPLY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE  DATE  OF
 SUCH LAW; OR
   (B)  UPON  THE  GROUND  THAT  THE  OFFENSE FOR WHICH THE APPLICANT WAS
 CONVICTED WAS SUBSEQUENTLY REDUCED TO A LESSER  DEGREE  OFFENSE  BY  THE
 LEGISLATURE AND SUCH REDUCTION HAS BEEN MADE RETROACTIVE BY THE LEGISLA-
 TURE OR CONTROLLING JUDICIAL AUTHORITY; OR
   (C)  UPON  THE  GROUND  THAT  THE UNDISPUTED ACT OR ACTS FOR WHICH THE
 APPLICANT WAS CONVICTED HAVE BEEN SUBSEQUENTLY DETERMINED BY CONTROLLING
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00248-01-5
              

 A. 7422                             2
 
 JUDICIAL AUTHORITY TO HAVE BEEN LEGALLY INSUFFICIENT, AS OF THE DATE  OF
 THE COMMISSION OF THE CRIME, TO HAVE SATISFIED THE ELEMENTS OF THE CRIME
 FOR  WHICH  THE  APPLICANT WAS CONVICTED, BUT WERE LEGALLY SUFFICIENT TO
 SUPPORT  CONVICTION  FOR  A  LESSER  DEGREE  OFFENSE ON THE DATE OF SUCH
 COMMISSION.
   2. UPON GRANTING RELIEF PURSUANT TO PARAGRAPH (A) OF  SUBDIVISION  ONE
 OF  THIS  SECTION,  THE COURT SHALL VACATE THE JUDGMENT OF CONVICTION ON
 THE MERITS, DISMISS THE ACCUSATORY INSTRUMENT AND MAY  TAKE  SUCH  ADDI-
 TIONAL  ACTION  AS  IS  APPROPRIATE IN THE CIRCUMSTANCES.  UPON GRANTING
 RELIEF PURSUANT TO PARAGRAPH (B) OR  (C)  OF  SUBDIVISION  ONE  OF  THIS
 SECTION,  THE  COURT  SHALL MODIFY THE JUDGMENT TO ONE OF CONVICTION FOR
 THE APPROPRIATE LESSER OFFENSE AND RE-SENTENCE THE APPLICANT  ACCORDING-
 LY.
   §  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 (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  subdivision  1 and subdivision 6 as
 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
 vision 1 as amended by chapter 92 of the laws of  2021,  paragraphs  (b)
 and  (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
 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, the court in which it
 was entered may, upon motion of the [defendant] 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] ON
 behalf of a court or a prosecutor; or
   (c) Material evidence adduced at a trial resulting in the judgment  OF
 CONVICTION  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 adduced by the people at a  trial  resulting  in
 the  judgment 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)  (I)  New evidence has been discovered [since the entry of a judg-
 ment 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 is of such character as to create a probability  that
 had such evidence been received at the trial the verdict 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]; or
   [(g-1)  Forensic  DNA] (II) NEW EVIDENCE HAS BEEN DISCOVERED SINCE THE
 ENTRY OF A JUDGMENT BASED UPON A GUILTY PLEA, WHICH COULD NOT HAVE  BEEN
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 PRODUCED  BY  THE  APPLICANT  PRIOR TO THE ENTRY OF THE GUILTY PLEA EVEN
 WITH DUE DILIGENCE ON THEIR PART AND WHICH IS OF SUCH A CHARACTER AS  TO
 CREATE A REASONABLE PROBABILITY THAT THE APPLICANT WAS ACTUALLY INNOCENT
 OF THE OFFENSE AND THE UNDERLYING CONDUCT FOR WHICH THEY WERE CONVICTED.
   (III)  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 would  have
 been  more favorable to the defendant.]: (A) IN THE CASE OF AN APPLICANT
 CONVICTED AFTER A GUILTY PLEA, THAT THE DEFENDANT IS ACTUALLY  INNOCENT;
 OR  (B)  IN  THE  CASE  OF  AN APPLICANT CONVICTED AFTER TRIAL, THAT THE
 VERDICT WOULD HAVE BEEN MORE FAVORABLE TO THE APPLICANT; OR
   (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; 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
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   (k)  The  judgment occurred prior to the effective date of the laws of
 two thousand [twenty-one] TWENTY-FIVE that amended this paragraph and is
 a conviction for an offense as defined in  [subparagraphs]  SUBPARAGRAPH
 (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) THE OFFENSE FOR WHICH THE APPLICANT WAS CONVICTED HAS BEEN HELD TO
 BE UNCONSTITUTIONAL UNDER THE FEDERAL OR STATE CONSTITUTION BY THE COURT
 OF APPEALS, AN INTERMEDIATE APPELLATE COURT OR A U.S. COURT WITH  JURIS-
 DICTION OVER NEW YORK.
   2. Notwithstanding the provisions of subdivision one, the court [must]
 SHALL 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; OR THE APPLICANT HAS
 SUBMITTED NEW EVIDENCE THAT COULD NOT HAVE BEEN PREVIOUSLY PRODUCED WITH
 THE EXERCISE OF DUE DILIGENCE THAT MATERIALLY ADVANCES THE CLAIM; 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 (H), (i), (J) OR (K) 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] APPLICANT have readi-
 ly 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 judg-
 ment, the [defendant] APPLICANT  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] APPLICANT of
 A. 7422                             5
 
 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 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 determination  there  has  been  a  retroactively
 effective  change in the law controlling such issue OR THE APPLICANT HAS
 SUBMITTED NEW EVIDENCE THAT COULD NOT HAVE BEEN PREVIOUSLY PRODUCED WITH
 THE EXERCISE OF DUE DILIGENCE THAT MATERIALLY ADVANCES THE CLAIM; or
   (c) Upon a previous motion made pursuant to this section, the [defend-
 ant] APPLICANT was in a position adequately to raise the ground or issue
 underlying the present motion but did not do so.
   Although the court may deny the motion under any of the  circumstances
 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. FOR PURPOSES OF PARAGRAPHS (G) AND (H) OF SUBDIVISION ONE  OF  THIS
 SECTION,  AN  APPLICANT IS ACTUALLY INNOCENT, WHERE THEY PROVE THAT THEY
 DID NOT COMMIT THE CRIME FOR WHICH THEY WERE CONVICTED OR THAT THE CRIME
 OF CONVICTION DID NOT OCCUR. IF THE COURT  CONCLUDES  THAT  THERE  IS  A
 REASONABLE  PROBABILITY  THAT  THE  APPLICANT  IS ACTUALLY INNOCENT, THE
 COURT SHALL VACATE THE CONVICTION OR CONVICTIONS AND ORDER A NEW  TRIAL.
 IF  THE COURT CONCLUDES BY CLEAR AND CONVINCING EVIDENCE THAT THE APPLI-
 CANT IS ACTUALLY INNOCENT OF THE  CRIME,  THE  COURT  SHALL  VACATE  THE
 CONVICTION OR CONVICTIONS AND DISMISS WITH PREJUDICE.
   5.  If  the  court  grants  the motion, it must, except as provided in
 subdivision [five] SIX or [six] SEVEN 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.]  6.  Upon  granting  the motion upon the ground, as prescribed in
 paragraph (g) of subdivision one OF THIS SECTION, 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.] 7. If the court grants a motion under paragraph [(i) or paragraph
 (k)] (G) OR (H), WHEN THE BASIS FOR RELIEF IS ACTUAL INNOCENCE AS ESTAB-
 LISHED  BY CLEAR AND CONVINCING EVIDENCE, (I), (J) OR (K) of subdivision
 one of this section, it must vacate the judgment [and]  ON  THE  MERITS,
 dismiss  the  accusatory instrument, 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]  APPLICANT'S
 participation  in  the  offense  was a result of having been a victim of
 trafficking.
   [7.] 8. 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
 A. 7422                             6
 
 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.] 9. 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] EIGHT. 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.] 10. 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
   (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,  or  WAS otherwise invalid as a matter of law.  Where the judg-
 ment 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  [subdivisions] SUBDIVISION two [and three] of section
 440.10, other than paragraph (d) of  subdivision  two  of  such  section
 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] 440.27 or, to the extent that the [defendant] APPLICANT
 cannot be resentenced to death consistent with the laws of this state or
 the constitution of this state or of the United States,  resentence  the
 [defendant]  APPLICANT  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
 A. 7422                             7
 
 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.
   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]  APPLI-
 CANT 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  [and]  BY  A  PRO  SE  APPLICANT,  upon
 reasonable  notice to the people[. Upon the motion, a defendant], TO THE
 COURT IN WHICH THE JUDGMENT AND SENTENCE  WERE  ENTERED.  THE  APPLICANT
 SHALL  PROVIDE  SUCH  COURT WITH A PLAIN STATEMENT OF THE LEGAL CLAIM OR
 CLAIMS THE APPLICANT INTENDS TO RAISE.
   (B) THE COURT MAY IN ITS DISCRETION ASSIGN COUNSEL TO  THE  APPLICANT;
 PROVIDED, HOWEVER, THE COURT SHOULD CAREFULLY CONSIDER ASSIGNING COUNSEL
 WHERE THE APPLICANT RAISES A COLORABLE CLAIM AND ASSIGNING COUNSEL WOULD
 PROMOTE THE FAIR ADMINISTRATION OF JUSTICE.
   (C)  IF  THE  COURT  DECLINES  TO  ASSIGN  COUNSEL, IT SHALL STATE THE
 REASONS FOR DENYING THE REQUEST IN WRITING.
   (D) IF AT THE TIME OF THE APPLICANT'S REQUEST FOR ASSIGNMENT OF  COUN-
 SEL,  THE  SENTENCING  JUDGE  OR  JUSTICE NO LONGER SITS IN THE COURT IN
 WHICH THE SENTENCE WAS IMPOSED, THE REQUEST SHALL BE  RANDOMLY  ASSIGNED
 TO ANOTHER JUDGE OR JUSTICE OF THE COURT.
   (E)  NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO LIMIT THE RIGHT
 OF AN APPLICANT TO THE ASSIGNMENT OF COUNSEL WHEN A COURT HAS ORDERED  A
 HEARING ON A MOTION PURSUANT TO THIS ARTICLE.
   2.  (A) IN CONNECTION WITH THE PREPARATION BEFORE FILING OR PROCEEDING
 AFTER FILING OF A MOTION PURSUANT TO SECTION 440.10, AND UPON A  SHOWING
 THAT  THE  PROSPECTIVE  APPLICANT  OR APPLICANT HAS SOUGHT THE REQUESTED
 MATERIAL FROM FORMER TRIAL COUNSEL AND, WHERE APPLICABLE, FORMER  APPEL-
 LATE COUNSEL WITHOUT SUCCESS, THE COURT MUST ORDER THE PEOPLE TO PRODUCE
 A. 7422                             8
 
 DISCOVERY  MATERIAL THAT IS POTENTIALLY RELEVANT TO THE INVESTIGATION OR
 PRESENTATION OF AN IDENTIFIABLE CLAIM UNDER THIS ARTICLE. A  MOTION  FOR
 DISCOVERY UNDER THIS PARAGRAPH MUST BE BROUGHT UPON NOTICE TO THE PEOPLE
 AND  MAY  BE  MADE IN ANTICIPATION OF THE FILING OF A MOTION TO VACATE A
 FELONY JUDGMENT OF CONVICTION OR AFTER SUCH MOTION HAS BEEN  FILED.  THE
 COURT  SHALL  DENY  A  REQUEST MADE PURSUANT TO THIS PARAGRAPH WHERE THE
 APPLICANT INTENDS TO OR HAS CHALLENGED A JUDGMENT OF CONVICTION THAT  IS
 NOT A FELONY DEFINED IN SECTION 10.00 OF THE PENAL LAW, OR THE REQUESTED
 MATERIAL IS OTHERWISE CONTAINED IN ACCESSIBLE COURT FILES.
   (B) THERE SHALL BE A PRESUMPTION IN FAVOR OF DISCLOSURE WHEN CONSIDER-
 ING  AND DECIDING APPLICATIONS FOR DISCOVERY UNDER PARAGRAPH (A) OF THIS
 SUBDIVISION.
   (C) THE COURT MAY ORDER THAT DISCLOSURE OF  EVIDENCE  OR  PROPERTY  BE
 SUBJECT  TO  A  PROTECTIVE  ORDER AS SUBJECT TO THE GROUNDS SPECIFIED IN
 SECTION 245.70 OF THIS PART, WHERE APPROPRIATE.
   (D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE  POWER  TO
 SUBPOENA EVIDENCE PURSUANT TO SECTION 610.20.
   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]
 THEY  INTEND  to  challenge  the  judgment or sentence. If the motion is
 based upon the existence or occurrence of facts, the motion papers  must
 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 or his or  her]  APPLICANT  OR  THEIR  
 counsel,  if any, an answer denying or admitting any or all of the alle-
 gations of  the  motion  papers,  and  may  further  submit  documentary
 evidence or information 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
 A. 7422                             9

 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
   (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 been conducted  on  such  evidence,  and  if  the]
 results  [had]  been  admitted  in  the trial resulting in the judgment,
 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
 A. 7422                            10

 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
 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) (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 THEIR 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 IMPOSE AN APPRO-
 PRIATE REMEDY.
   (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
 A. 7422                            11

 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.]  5.  WHERE THE APPLICANT'S MOTION FOR RELIEF REQUESTS THE PERFORM-
 ANCE OF ANY OTHER FORENSIC TESTING OF EVIDENCE SECURED IN THE CASE,  THE
 COURT SHALL GRANT THE APPLICATION FOR TESTING OF SUCH EVIDENCE, UPON ITS
 DETERMINATION  THAT HAD THE RESULTS OF FORENSIC TESTING OF EVIDENCE BEEN
 AVAILABLE AT THE TIME OF TRIAL OR PLEA AND BEEN FAVORABLE TO THE  APPLI-
 CANT, THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN
 MORE FAVORABLE TO THE APPLICANT; OR
   6.  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)  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 attending
 the case, there is no reasonable possibility  that  such  allegation  is
 true.
   5.]  7. 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
 A. 7422                            12

 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.
   8. THE COURT MUST GRANT A HEARING WHERE:
   (A)  THE  MOVING PAPERS ALLEGE A GROUND CONSTITUTING A LEGAL BASIS FOR
 MOTION; AND
   (B) THE MOTION PAPERS ARE BASED UPON THE EXISTENCE  OR  OCCURRENCE  OF
 FACTS  AND  CONTAIN  SWORN  ALLEGATIONS  SUBSTANTIATING  OR  TENDING  TO
 SUBSTANTIATE ALL THE ESSENTIAL FACTS, AS REQUIRED BY SUBDIVISION ONE  OF
 THIS SECTION; AND
   (C)  NO  ALLEGATION OF FACT ESSENTIAL TO SUPPORT THE MOTION IS CONCLU-
 SIVELY REFUTED BY UNQUESTIONABLE DOCUMENTARY PROOF; AND
   (D) ALLEGATIONS OF FACT  ESSENTIAL  TO  SUPPORT  THE  MOTION  ARE  NOT
 CONTRADICTED  BY  A  COURT  RECORD  OR  OTHER OFFICIAL DOCUMENT, THEREBY
 ESTABLISHING THE REASONABLE POSSIBILITY THAT SUCH ALLEGATIONS ARE TRUE.
   9. If the court does not determine the motion  pursuant  to  [subdivi-
 sions  two,  three  or four] SUBDIVISION FOUR OR FIVE, 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 does] THEY DO not  so  waive
 [it]  SUCH  RIGHT  and if [he is] THEY ARE confined in a prison or other
 institution of this state,  the  court  must  cause  [him]  THEM  to  be
 produced at such hearing.
   [6.]  10.  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.
   [7.]  11.  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. Section 470.15 of the criminal procedure law is amended by adding
 a new subdivision 2-a to read as follows:
   2-A.  IN  AN  APPEAL  PURSUANT TO SUBDIVISION THREE OR FOUR OF SECTION
 450.10 FROM AN ORDER ENTERED  PURSUANT  TO  SECTION  440.10,  440.11  OR
 440.20  DENYING  A  MOTION  TO  VACATE  A JUDGMENT OR SENTENCE, WHEN THE
 APPLICANT PROCEEDED WITHOUT COUNSEL IN  THE  COURT  BELOW  AFTER  HAVING
 APPLIED  FOR  AND  BEEN  DENIED COUNSEL UNDER SUBDIVISION ONE OF SECTION
 440.30, EXCEPT WHEN THE COURT PROPERLY REFUSED TO ASSIGN  COUNSEL  BASED
 ON THE APPLICANT'S FINANCIAL ABILITY TO RETAIN COUNSEL, THE INTERMEDIATE
 APPELLATE  COURT MAY REVERSE THE ORDER, DIRECT THE COURT TO ASSIGN COUN-
 SEL, AND REMIT THE MATTER FOR DE  NOVO  CONSIDERATION.  SUCH  CORRECTIVE
 ACTION  IS  AUTHORIZED  WHEN THE INTERMEDIATE APPELLATE COURT DETERMINES
 THAT ADDITIONAL FACTUAL OR LEGAL DEVELOPMENT IS NECESSARY AND  APPROPRI-
 ATE  IN  THE  INTEREST  OF JUSTICE TO PROPERLY RESOLVE THE MERITS OF THE
 APPLICANT'S LEGAL CLAIM OR CLAIMS. NOTHING IN THIS SUBDIVISION SHALL  BE
 CONSTRUED  TO LIMIT AN INTERMEDIATE APPELLATE COURT'S AUTHORITY TO REMIT
 A MATTER TO THE TRIAL COURT FOR FURTHER PROCEEDINGS IN ANY OTHER CIRCUM-
 STANCE.
   § 6. Section 450.10 of the criminal procedure law, as amended by chap-
 ter 671 of the laws of 1971, subdivisions 1 and 2 as amended by  chapter
 671  of  the  laws  of 1984, subdivision 3 as added and subdivision 4 as
 renumbered by chapter 516 of the laws of  1986,  and  subdivision  5  as
 added by chapter 560 if the laws of 1999, is amended to read as follows:
 §  450.10    Appeal  by [defendant] PETITIONER to intermediate appellate
              court; in what cases authorized as of right.
 A. 7422                            13
 
   An appeal to an intermediate appellate court may be taken as of  right
 by  the [defendant] PETITIONER from the following judgment, sentence and
 order of a criminal court:
   1.    A judgment other than one including a sentence of death[, unless
 the appeal is based solely upon the ground that a sentence was harsh  or
 excessive  when  such  sentence  was  predicated upon entry of a plea of
 guilty and the sentence imposed did not exceed that which was agreed  to
 by  the defendant as a condition of the plea and set forth on the record
 or filed with the court as  required  by  subdivision  five  of  section
 220.50 or subdivision four of section 340.20;].
   2.    A sentence other than one of death, as prescribed in subdivision
 one of section 450.30[, unless the  appeal  is  based  solely  upon  the
 ground  that  a  sentence  was harsh or excessive when such sentence was
 predicated upon entry of a plea of guilty and the sentence  imposed  did
 not  exceed  that which was agreed to by the defendant as a condition of
 the plea and set forth in the record or filed with the court as required
 by subdivision five of section 220.50 or  subdivision  four  of  section
 340.20;].
   3.  AN  ORDER  DENYING  A  MOTION,  MADE PURSUANT TO SECTION 440.10 OR
 440.11, TO VACATE A JUDGMENT OTHER THAN  ONE  INCLUDING  A  SENTENCE  OF
 DEATH;  PROVIDED  HOWEVER  THAT  THE  INTERMEDIATE APPELLATE COURT, MAY,
 AFTER MOTION BY THE PEOPLE UPON NOTICE TO THE  PETITIONER,  DISMISS  THE
 NOTICE  OF  APPEAL ON THE GROUNDS THAT THE MOTION TO VACATE THE JUDGMENT
 IS UNSUPPORTED BY SWORN STATEMENTS OF FACT OR IS WHOLLY  UNSUPPORTED  BY
 LAW OR BY ANY GOOD FAITH ARGUMENT IN SUPPORT OF AN EXTENSION THEREOF.
   4.  AN ORDER DENYING A MOTION, MADE PURSUANT TO SECTION 440.20, TO SET
 ASIDE A SENTENCE OTHER THAN ONE INCLUDING A SENTENCE OF DEATH;  PROVIDED
 HOWEVER  THAT  THE INTERMEDIATE APPELLATE COURT MAY, AFTER MOTION BY THE
 PEOPLE UPON NOTICE TO THE PETITIONER DISMISS THE NOTICE OF APPEAL ON THE
 GROUNDS THAT THE MOTION TO VACATE THE SENTENCE IS UNSUPPORTED  BY  SWORN
 STATEMENTS  OF FACT OR IS WHOLLY UNSUPPORTED BY LAW OR BY ANY GOOD FAITH
 ARGUMENT IN SUPPORT OF AN EXTENSION THEREOF.
   5. A sentence including an order of criminal forfeiture entered pursu-
 ant to section 460.30 of the penal law with respect to  such  forfeiture
 order.
   [4.]  6. An order, entered pursuant to section 440.40, setting aside a
 sentence other than one of death, upon motion of the People.
   [5.] 7. An order denying a motion, made pursuant to subdivision  one-a
 of section 440.30, for forensic DNA testing of evidence.
   § 7. Section 450.15 of the criminal procedure law is REPEALED.
   § 8. Subdivision 1 of section 450.30 of the criminal procedure law, as
 amended  by  chapter  671  of  the  laws  of 1984, is amended to read as
 follows:
   1.   An appeal by the  [defendant]  PETITIONER  from  a  sentence,  as
 authorized  by  subdivision two of section 450.10, may be based upon the
 ground that such sentence either was (a) invalid as a matter of law,  or
 (b)  harsh  or excessive.   A sentence is invalid as a matter of law not
 only when the terms thereof are unauthorized but also when it  is  based
 upon  an  erroneous  determination that the [defendant] PETITIONER had a
 previous valid conviction for an offense or, in the case of a resentence
 following a  revocation  of  a  sentence  of  probation  or  conditional
 discharge,  upon  an  improper revocation of such original sentence. [An
 appeal by the defendant from a sentence, as  authorized  by  subdivision
 three of section 450.15, may be based upon the ground that such sentence
 was harsh or excessive.]
 A. 7422                            14
 
   §  9.  Subdivision  4  of section 722 of the county law, as amended by
 chapter 141 of the laws of 2008, is amended to read as follows:
   4.  Representation according to a plan containing a combination of any
 of the foregoing. Any judge, justice or magistrate in assigning  counsel
 pursuant  to  sections 170.10, 180.10, 210.15 and 720.30 of the criminal
 procedure law, OR IN ASSIGNING COUNSEL PURSUANT TO  SUBDIVISION  ONE  OF
 SECTION 440.30 OF THE CRIMINAL PROCEDURE LAW, or in assigning counsel to
 [a defendant] AN APPLICANT when a hearing has been ordered in a proceed-
 ing  upon a motion, pursuant to article four hundred forty of the crimi-
 nal procedure law, to vacate a judgment or to set aside a  sentence  [or
 on a motion for a writ of error coram nobis], OR IN ASSIGNING COUNSEL TO
 AN  APPLICANT IN CONNECTION WITH AN APPEAL THEREFROM PURSUANT TO SECTION
 450.10 OR 450.20 OF THE CRIMINAL PROCEDURE LAW, or in assigning  counsel
 pursuant to the provisions of section two hundred sixty-two of the fami-
 ly  court  act  or  section  four hundred seven of the surrogate's court
 procedure act, or in assigning counsel to  [a  defendant]  AN  APPLICANT
 when a case has been calendared for consideration of resentencing pursu-
 ant  to  subdivision four of section six hundred one-d of the correction
 law or when a court is otherwise called upon to consider whether a prop-
 er term of post-release supervision was imposed as part of a determinate
 sentence, shall assign counsel  furnished  in  accordance  with  a  plan
 conforming  to the requirements of this section; provided, however, that
 when the county or the city in which a county is  wholly  contained  has
 not  placed  in  operation  a plan conforming to that prescribed in this
 subdivision or subdivision three of this section and the judge,  justice
 or  magistrate  is  satisfied  that  a conflict of interest prevents the
 assignment of counsel pursuant to the plan in  operation,  or  when  the
 county  or the city in which a county is wholly contained has not placed
 in operation any plan conforming to that prescribed in this section, the
 judge, justice or magistrate may assign any attorney in such  county  or
 city  and,  in  such event, such attorney shall receive compensation and
 reimbursement from such county or city which shall be at the  same  rate
 as  is prescribed in section seven hundred twenty-two-b of this article.
 When a case has been calendared for consideration of resentencing pursu-
 ant to subdivision four of section six hundred one-d of  the  correction
 law or when a court is otherwise called upon to consider whether a prop-
 er term of post-release supervision was imposed as part of a determinate
 sentence, the attorney appointed should be the attorney who appeared for
 the  [defendant]  APPLICANT  in connection with the judgment or sentence
 or, if the [defendant] APPLICANT  is  currently  represented  concerning
 [his  or  her] THEIR conviction or sentence or with respect to an appeal
 from [his or her] THEIR conviction or sentence, such present counsel.
   § 10. 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: (A) THE TOP CONVICTION CHARGE FOR EACH APPLICATION  OR  MOTION;
 (B)  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; (C) THE OUTCOME OF EACH MOTION FILED WHETH-
 A. 7422                            15
 
 ER DENIED WITHOUT HEARING, DENIED  WITH  HEARING,  VACATUR  GRANTED,  OR
 OTHER;  AND  (D)  THE  AVERAGE LENGTH OF TIME MOTIONS UNDER ARTICLE FOUR
 HUNDRED FORTY OF THE CRIMINAL PROCEDURE  LAW  REMAIN  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  INDIVIDUAL  APPLICANTS.  THE REPORT SHALL BE RELEASED
 PUBLICLY AND PUBLISHED ON THE WEBSITES OF THE OFFICE OF  COURT  ADMINIS-
 TRATION  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.
   § 11. 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.
   §  12.  This  act shall take effect on the sixtieth day after it shall
 have become a law and shall apply to all motions that are not  final  as
 of such effective date.