Senate Bill S6234

                                 BILL NUMBER:  S6234A

 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 2010".

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(i) 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 innocent 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
constitutional 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
postconviction motion to vacate a prior judgment of conviction.  Under
a newly added paragraph (i) 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.

                                 BILL NUMBER:  S6234B

 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 2010".

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(i) 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 innocent 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
constitutional 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 free standing 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 (i) 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.

                                BILL NUMBER:S6234C

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 2010".

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 amends subdivision (4) of section 440.10 of
the Criminal Procedure Law to require in certain circumstances that the
court dismiss the accusatory instrument.

section four of the bill adds a new paragraph (8) of section 440.10 to
require in certain circumstances the court address the merits of any
              

claim for relief.

Section five of the bill establishes the effective date.

JUSTIFICATION:
Over the past twenty years, 254 DNA exonerations of convicted innocents
in the United States have drawn the attention of citizens and legisla-
tures around the country to the phenomenon of wrongful convictions of
the innocent. According to the data provided by the Innocence Project,
twenty-six, or 10%, of those 254 exonerations were in the State of New
York. In addition, the New York State Bar Association's Task Force on
Wrongful Convictions recently identified and studied fifty-three
"judicial/formal exonerations" over the last twenty-odd years, thirty-
one of them non-DNA exonerations.  Thirty-nine additional non-DNA exon-
erations have been identified in preparing this legislation, mainly by
examining the results of compensation actions pursuant to Court of
Claims Act § 8-b. Thus, at least ninety-five men and women have been
clearly identified in New York as having spent years, sometimes decades,
in prison for murders, rapes, and other serious crimes they did not
commit. A significant number of other reversals and vacaturs have
occurred where there was strong evidence of innocence, but for one
reason or another cannot be included in a set of clear-cut "exonera-
tions." Thus wrongful convictions are not a trivial problem in New York.
As Judge Lippman recently wrote in Hurrell-Harring v. State: "Wrongful
conviction, the ultimate sign of a criminal justice system's breakdown

and failure, has been documented in too many cases." 2010 WL 1791000
(N.Y. May 6, 2010).

Many exonerations in New York were achieved through the litigation of
CPL §440.10 motions, demonstrating that New York's post-conviction stat-
ute is an excellent avenue of collateral relief for many innocent indi-
viduals _ a good model, in fact, for other states to follow. Yet it has
become clear that some state court judges are not providing justice in
such cases, often because of their interpretation of the procedural
limitations of the current law. In the case of Marty 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 appel-
late 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.  It is intolerable that any person in New
York whose trial has been shown to have led to a manifest injustice
should remain in prison on a technicality under state law.

For individuals like Marty Tankleff, the Criminal Procedure Law current-
ly offers only limited hope for collateral relief by establishing a
series of post-conviction procedural roadblocks that, taken together,
can deprive an innocent 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. This bill is intended to renew and
strengthen the authorization of state court judges, despite any and all
procedural or other technical obstacles, to re-visit and give a fair
hearing to any case that presents to the reasonable mind a serious doubt
about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various
jurisdictions around the country by way of a "freestanding" claim of
actual innocence on constitutional grounds. The Supreme Court has not
yet explicitly held that such a claim can be brought under the United
States Constitution. As Justice Roberts wrote for a 5-4 majority in DA's
Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a federal
right to be released upon proof of actual innocence exists is an open
question." But several state courts have held that such a claim exists
under their state constitutions (including Illinois, California, Connec-
ticut, Missouri, New Mexico, and Texas). The New York Court of Appeals
has yet to consider the issue directly, although a handful of trial
courts have begun to do so and found compelling grounds to recognize a
convicted person's right to post-conviction relief based on proof of
actual innocence under state law. In 2003, a New York state judge held

for the first time that Article I § 6 of the New York State Constitution
prohibits the execution or incarceration of an innocent person and that
a free-standing claim of actual innocence is therefore cognizable under
440.10(1) (h). People v. Cole, 1 Misc. 3d 531, 765 N.Y.S. 2d 477 (Sup.
Ct., Kings Cty. 2003). In 2009 two other trial court judges held simi-
larly and granted relief on the ground of actual innocence on constitu-
tional grounds under CPL 440.10(1) (h), the movants having shown they
were innocent by clear and convincing evidence. People v. Bermudez, 2009
N.Y. Slip Op. 52302U, 25 Misc. 3d 1226A (Sup. Ct., N.Y. Cty., Nov. 9,
2009) i People v.  Wheeler-Whichard, 2009 N.Y. Slip Op. 51647(U), (Sup.
Ct., Kings Cty., July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is now
an appropriate basis for New York courts to overturn a criminal
conviction under a newly added paragraph (i) of CPL § 440.10(1). The
judge is directed to grant relief where it is "established by clear and
convincing evidence that no trier of fact would have convicted the
defendant under a reasonable doubt standard and in light of all avail-
able evidence." Thus, the judge is to consider all relevant evidence
without regard to trial rules of admissibility. Paragraph (1) (4) is
amended to clarify that, as held in Cole, Bermudez, and Wheeler-Which-
ard, the proper remedy for such a finding is vacatur of the conviction
and dismissal of the indictment.

In addition, a new paragraph (8) clarifies that convicted people who can
demonstrate a reasonable probability that they are innocent will have
the right to challenge their convictions under the statute, notwith-
standing any other procedural and other technical provisions of the
statute that would have prevented them from doing so. Several states
have taken for granted that due process requires them to forgive these
"procedural defaults" where a likelihood of innocence is present. See,
e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) Reedy v. Wright,
60 Va. Cir. 18, 26 (Va. Cir. Ct. 2002) i State v.  Pope, 80 P.3d 1232,
318 Mont. 383 (2003); Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. 2000).
This paragraph is intended to provide relief from procedural defaults or
other technical requirements in addition to, and independently of, any
judicial finding that such relief is required under the Due Process
Clause of either the Federal or State Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants
with an opportunity to fully vindicate their rights and to provide a
post-conviction court with an opportunity to correct miscarriages of
justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of
justice with the greatest call on the Court's conscience is a long pris-
on sentence or execution of a person who is entirely innocent of the
crime for which he is being punished. These amendments are intended to
require judges to treat claims of actual innocence with the seriousness
they warrant, and to permit them to adjudicate reasonable claims of
innocence without becoming entangled in legal uncertainties and techni-
calities.

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.