The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7670

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 20, 2009
                               ___________

Introduced  by  M. of A. GOTTFRIED, KELLNER, DINOWITZ, BENEDETTO, BENJA-
  MIN, CHRISTENSEN, COOK, GALEF, GLICK,  HOYT,  JAFFEE,  KOON,  LANCMAN,
  MENG,  MILLMAN,  PAULIN,  REILLY,  ROSENTHAL, STIRPE, WRIGHT -- Multi-
  Sponsored by -- M. of A.  AMEDORE,  BARRON,  CROUCH,  FIELDS,  HOOPER,
  JOHN,  McDONOUGH,  McENENY, PHEFFER, ROBINSON, WEISENBERG -- read once
  and referred to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation  to  victims  of
  sex trafficking convicted of prostitution offenses

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (h) of subdivision 1 of  section  440.10  of  the
criminal  procedure  law  is amended and a new paragraph (i) is added to
read as follows:
  (h)  The judgment was obtained in violation of a right of the  defend-
ant under the constitution of this state or of the United States[.]; OR
  (I)  THE JUDGMENT IS A CONVICTION WHERE THE ARRESTING CHARGE WAS UNDER
SECTION 240.37 (LOITERING FOR THE PURPOSE OF ENGAGING IN A  PROSTITUTION
OFFENSE, PROVIDED THAT THE DEFENDANT WAS NOT ALLEGED TO BE LOITERING FOR
THE  PURPOSE  OF  PATRONIZING A PROSTITUTE OR PROMOTING PROSTITUTION) OR
230.00 (PROSTITUTION) OF THE PENAL  LAW,  AND  THE  DEFENDANT'S  PARTIC-
IPATION IN THE OFFENSE WAS A RESULT OF HAVING BEEN A VICTIM OF SEX TRAF-
FICKING  UNDER SECTION 230.34 OF THE PENAL LAW OR TRAFFICKING IN PERSONS
UNDER THE TRAFFICKING VICTIMS PROTECTION ACT (UNITED STATES CODE,  TITLE
22, CHAPTER 78); PROVIDED THAT
  (I)  A  MOTION  UNDER THIS PARAGRAPH SHALL BE MADE WITH DUE DILIGENCE,
AFTER THE DEFENDANT HAS CEASED TO BE A VICTIM OF SUCH TRAFFICKING OR HAS
SOUGHT SERVICES FOR VICTIMS OF SUCH TRAFFICKING, SUBJECT  TO  REASONABLE
CONCERNS  FOR THE SAFETY OF THE DEFENDANT, FAMILY MEMBERS OF THE DEFEND-
ANT, OR OTHER VICTIMS OF SUCH TRAFFICKING THAT MAY BE JEOPARDIZED BY THE
BRINGING OF SUCH MOTION,  OR  FOR  OTHER  REASONS  CONSISTENT  WITH  THE
PURPOSE OF THIS PARAGRAPH; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD08227-02-9

A. 7670                             2

  (II)  OFFICIAL  DOCUMENTATION OF THE DEFENDANT'S STATUS AS A VICTIM OF
SEX TRAFFICKING OR TRAFFICKING IN PERSONS AT THE  TIME  OF  THE  OFFENSE
FROM A FEDERAL, STATE OR LOCAL GOVERNMENT AGENCY SHALL CREATE A PRESUMP-
TION  THAT  THE DEFENDANT'S PARTICIPATION IN THE OFFENSE WAS A RESULT OF
HAVING  BEEN  A VICTIM OF SEX TRAFFICKING OR TRAFFICKING IN PERSONS, BUT
SHALL NOT BE REQUIRED FOR GRANTING A MOTION UNDER THIS PARAGRAPH.
  S 2. Paragraph (b) of subdivision 2 of section 440.10 of the  criminal
procedure law is amended to read as follows:
  (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. THIS PARAGRAPH SHALL NOT APPLY TO A MOTION UNDER
PARAGRAPH (I) OF SUBDIVISION ONE OF THIS SECTION; or
  S 3. Paragraph (a) of subdivision 3 of section 440.10 of the  criminal
procedure law is amended to read as follows:
  (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
  S  4. Subdivision 4 of section 440.10 of the criminal procedure law is
amended to read as follows:
  4.  If the court grants the motion, it must,  except  as  provided  in
subdivision  five  OR SIX OF THIS SECTION, vacate the judgment, and must
dismiss the accusatory instrument, or order a new trial,  or  take  such
other action as is appropriate in the circumstances.
  S  5. Subdivisions 6 and 7 of section 440.10 of the criminal procedure
law are renumbered subdivisions 7 and 8 and a new subdivision 6 is added
to read as follows:
  6. IF THE COURT GRANTS A MOTION UNDER PARAGRAPH (I) OF SUBDIVISION ONE
OF THIS SECTION, IT MUST VACATE THE JUDGMENT AND DISMISS THE  ACCUSATORY
INSTRUMENT, AND MAY TAKE SUCH ADDITIONAL ACTION AS IS APPROPRIATE IN THE
CIRCUMSTANCES.
  S  6.  This  act  shall  take  effect  immediately  and shall apply to
convictions taking place before or after it takes effect.