S T A T E O F N E W Y O R K
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11123
I N A S S E M B L Y
May 18, 2010
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Introduced by M. of A. LAVINE -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to vacating
judgments based upon forensic DNA tests
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 and subdivision 5 of section
440.10 of the criminal procedure law are amended to read as follows:
(h) NEW EVIDENCE CONSISTING OF FORENSIC DNA TEST RESULTS HAS BEEN
DISCOVERED SINCE THE ENTRY OF JUDGMENT BASED UPON A PLEA OF GUILTY,
WHICH WAS NOT AVAILABLE TO THE DEFENDANT PRIOR TO THE PLEA AND WHICH IS
OF SUCH CHARACTER AS TO CREATE A PROBABILITY THAT HAD SUCH EVIDENCE BEEN
KNOWN BY THE DEFENDANT PRIOR TO THE ENTRY OF A PLEA OF GUILTY THAT THE
PLEA WOULD NOT HAVE BEEN ENTERED; PROVIDED THAT A MOTION BASED UPON SUCH
GROUND MUST BE MADE WITH DUE DILIGENCE AFTER THE DISCOVERY OF SUCH
ALLEGED NEW EVIDENCE; OR
(I) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States.
5. Upon granting the motion upon the ground, as prescribed in para-
graph (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 in that the
conviction would have been for a lesser offense than the one contained
in the verdict, OR AS PRESCRIBED IN PARAGRAPH (H) OF SUBDIVISION ONE,
THAT NEWLY DISCOVERED EVIDENCE CONSISTING OF FORENSIC DNA TEST RESULTS
CREATES A PROBABILITY THAT HAD SUCH EVIDENCE BEEN KNOWN BY THE DEFENDANT
PRIOR TO THE ENTRY OF A PLEA OF GUILTY THAT THE PLEA WOULD NOT HAVE BEEN
ENTERED, 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 accordingly.
S 2. Subdivision 1 of section 440.20 of the criminal procedure law, as
amended by chapter 1 of the laws of 1995, is amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17298-01-0
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1. At any time after the entry of a judgment, the court in which the
judgment was entered may, upon motion of the defendant, set aside the
sentence upon the ground that it was unauthorized, illegally imposed or
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) OR (I)
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 two and three of section 440.10, other than paragraph
(d) of subdivision two of such section, 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 resentenced to death consistent with
the laws of this state or the constitution 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.
S 3. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal procedure law, as amended by chapter 138 of the laws of 2004, is
amended and a new paragraph (c) is added to read as follows:
(a) Where the defendant's motion TO VACATE A CONVICTION OR JUDGMENT
requests the performance of a forensic DNA test on specified evidence,
INCLUDING BODILY FLUIDS, BIOLOGICAL SAMPLES, AND PHYSICAL OBJECTS, and
upon the court's determination that [any] evidence containing deoxyribo-
nucleic acid ("DNA") was [secured] OBTAINED in connection with the
COLLECTION OF EVIDENCE FROM THE CRIME SCENE OR OTHER RELEVANT LOCATIONS,
INVESTIGATION OR PREPARATION OF THE CASE, NEGOTIATION FOR DISPOSITION OR
trial resulting in the judgment, the court shall grant the application
for forensic [DNA] testing FOR DNA of such evidence upon its determi-
nation that if a DNA test had been conducted on such evidence, and if
[the] EXCULPATORY results had been AVAILABLE TO THE DEFENDANT FOR
PRETRIAL PROCEEDINGS OR POST TRIAL PROCEDURES OR admitted [in the] AT A
trial resulting in the judgment, there exists a reasonable [probability]
POSSIBILITY that the verdict OR OTHER PROCEEDINGS OR PROCEDURES would
have been more favorable to the defendant.
(I) TO DETERMINE WHETHER THE REQUEST FOR DNA FORENSIC TESTING SHOULD
BE GRANTED, THE COURT SHALL CONSIDER THE AVAILABILITY OF NEWLY DEVELOPED
TESTS AND ADVANCES IN TECHNOLOGY THAT MAY MAKE IT POSSIBLE TO OBTAIN
EXCULPATORY DNA TEST RESULTS THAT WERE NOT PREVIOUSLY OBTAINED.
(II) A DEFENDANT WHO PLEADED GUILTY MAY SEEK DNA TESTING UNDER THIS
SUBDIVISION. A GUILTY PLEA SHALL NOT BAR THE MAKING OF THE REQUEST FOR
TESTING AND THE MOTION TO VACATE THE CONVICTION OR JUDGEMENT SHALL NOT
BE DENIED BECAUSE THE DEFENDANT PREVIOUSLY PLEADED GUILTY IN THE CASE.
(C) IN CONNECTION WITH A PENDING MOTION MADE PURSUANT TO THIS SECTION,
THE COURT MAY DIRECT, BY ORDER OR ISSUANCE OF A SUBPOENA, THE PROSECUTOR
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OR OTHER AGENCY OF THE STATE OR LOCAL GOVERNMENT TO PROVIDE THE PETI-
TIONER WITH INFORMATION, INCLUDING DOCUMENTS, NOTES, LOGS OR REPORTS,
RELATING TO PHYSICAL ITEMS COLLECTED IN CONNECTION WITH THE CASE WHERE
IT IS LIKELY THAT SUCH PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING,
WOULD MEET THE TEST SET OUT IN PARAGRAPH (A) OF THIS SUBDIVISION. THE
COURT MAY ORDER STATE OR LOCAL AGENCIES TO PROVIDE REASONABLE ASSISTANCE
AND TAKE REASONABLE STEPS TO LOCATE RECORDS OR ITEMS WHICH ARE ASSERTED
TO HAVE BEEN LOST OR DESTROYED. THE COURT ORDER MAY DIRECT EFFORTS TO
LOCATE THE ITEMS IN STATE OR LOCAL GOVERNMENT OFFICES, PUBLIC OR PRIVATE
HOSPITALS AND LABORATORIES, AND OTHER FACILITIES.
S 4. This act shall take effect immediately.