BILL NUMBER:A9736

TITLE  OF  BILL:    An  act  to  amend  the criminal procedure law, in
relation to establishing the actual innocence justice act of 2010

PURPOSE: This bill would permit the  Court  in  which  a  judgment  of
conviction  was  entered to grant a post-conviction motion to vacate a
judgment based on actual innocence.

SUMMARY OF PROVISIONS: Section one of the bill entitles  the  act  the
"Actual Innocence Justice Act of 2009".

Section two of the bill adds a new paragraph (i) to subdivision one of
section  440.10  of  the Criminal Procedure Law to provide that actual
innocence shall be a ground upon which a defendant may base his or her
post-conviction motion.

Section three of the bill adds a new subdivision (3-a) to section  440
10  of  the  Criminal  Procedure Law to render inapplicable to the new
section 440.10(1) motions certain provisions requiring  or  permitting
the denial of a motion to vacate a judgment.

Section  four  of the bill amends subdivision (2) of section 440.30 of
the criminal procedure law to make certain conforming changes.

Section five of the bill establishes the effective date.
              

JUSTIFICATION: According to experts, DNA exonerations represent only a
small fraction of all of the wrongful convictions found in the  United
States.  Between  the years of 2003-2008, approximately 64% of all the
exonerations in the United States  were  based  on  non-DNA  evidence.
Experts  observe  that the percentage of exonerations based on non-DNA
evidence in New York State is only increasing.

For these individuals, the Criminal  Procedure  Law  currently  offers
only  limited  hope  for collateral relief by establishing a series of
post-conviction  procedural  roadblocks  that,  taken  together,   can
deprive  an  inno-  cent person from having his or her innocence claim
fully  and  fairly  aired.  The  tragic  result  --   as   graphically
demonstrated  in  hundreds of wrongful conviction cases throughout the
country -is that an innocent person can spend years  or  even  decades
behind  bars  while  the  real perpetrator remains free to commit more
crimes and terrorize additional victims.

Presently, a defendant who claims  factual  innocence  can  request  a
criminal  court  to grant a post-conviction motion to vacate the prior
conviction under Criminal  Procedure  Law  section  440.10(1)  (g)  or
Section  440.10  (1)(h).  Section  440.10(1)(g) allows generally for a
defendant to challenge his or her conviction  based  on  new  evidence
which  could  not  have  been  produced by the defendant at trial. CPL
section  440.10(1)(h)allows  for  a   defendant   to   challenge   the
constitutionality  of  his  or  her  conviction  on collateral review.
However, under section 440.10(1)(g), the new evidence must  have  been
discovered  since  the  entry  of  judgment,  and  unable to have been
produced at trial by the defendant  even  with  due  diligence.  Under
section  440.10(1)(g),  the  defendant  must  make  a  motion with due
diligence after  the  discovery  of  such  evidence.    Under  section


440(1)(h),  the  defendant  must claim a violation of consti- tutional
right  either  under  the  New  York  State  or  the   United   States
constitution.   Several   local  courts  have  already  mentioned  the
possibility of a post-conviction claim based on actual. innocence, SEE
PEOPLE  V WHEELER-WHICHARD, 884 N.Y.S.2d 304, 313, (Sup. Ct., Kings Co
2009)and PEOPLE V. COLE 1 Misc.3d 531, 765  N.Y.S.2d  477  (Sup.  Ct.,
Kings  Co 2003), and no higher courts in New York State have expressly
recognized "actual innocence" as a ground under CPL 440.10(1)(h).

This bill would create a freestanding  ground  of  "actual  innocence"
under existing CPL 440.10(1) upon which a criminal court could grant a
post-conviction  motion  to  vacate  a  prior  judgment of conviction.
Under a newly added paragraph (1) of CPL 440.10(1), and  corresponding
amendments  to  the  procedural  provisions  of CPL 440.30, a criminal
court would be empowered to vacate  its  own  judgment  of  conviction
where, notwithstanding the defendant's inaction or failure to use "due
diligence"  at an earlier stage of the trial or appellate proceedings,
the defendant is able to present "reliable and  relevant"  proof  that
"conclusively  establishes"  the  defendant's  actual innocence of the
crime or crimes of which he or she was convicted.

To ensure that a defendant  cannot  benefit  from  prior,  purposeful,
inaction  aimed  at  "gaming"  the system, the bill would specifically
permit the court to deny  a  request  where  it  determines  that  the
defendant's  prior  failure to act amounted to "the intentional use of
dilatory  tactics  aimed  at  obtaining  a  strategic  or   procedural
advantage" in the case.

In  People  v.  Tankleff,  the lower court denied Tankleff's motion to
vacate judgment based on  440.10(1)(g)  and  440.10(1)(h).  Tankleff's
direct  appeal  of the verdict to the appellate division and a federal
habeas appeal had also been previously denied. In denying  the  motion
based  on  440.10(1)(g),  the  trial court found the defendant did not
exercise due diligence in moving for a  new  trial.  The  440.10(1)(h)
motion  was  denied  based on the court's finding that there exists no
constitutional right to relief based on actual innocence.  If  it  had
not  been  for the appellate division remitting the case to the county
court for a new  trial,  Tankleff's  wrongful  conviction  would  most
likely  never  have  been  heard  due to the limited nature of the few
remedies available to him.

The grounds upon which  a  defendant  can  make  a  motion  to  vacate
judgment  must be expanded. It is presumably a rare instance where one
previously convicted is able to later conclusively satisfy  the  court
that  he or she in fact did not commit the criminal acts that form the
basis of that Conviction. In these rare  and  exceptional  cases,  the
administration  of  justice  would  be  deeply  flawed  if  a  set  of
procedural restrictions could  permanently  foreclose  any  option  of
overturning  a  wrongful  conviction  and  offering  a new trial to an
innocent defendant.   This bill is  intended  to  address  these  rare
instances  by  creating  an express provision, within the existing CPL
post-conviction framework, for "actual innocence"  to  be  adjudicated
and true justice achieved.

LEGISLATIVE HISTORY: This is a new bill.

FISCAL IMPLICATIONS: None.


EFFECTIVE DATE: This act shall take effect immediately.