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

                                  9430

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 6, 2010
                               ___________

Introduced by M. of A. JEFFRIES -- read once and referred to the Commit-
  tee on Codes

AN  ACT to amend the criminal procedure law, in relation to establishing
  the actual innocence justice act of 2009

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

  Section  1.  This  act shall be known as the "actual innocence justice
act of 2009".
  S 2. Subdivision 1 of section 440.10 of the criminal procedure law  is
amended by adding a new paragraph (i) to read as follows:
  (I) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH
HE  OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT IS
ACTUALLY INNOCENT WHERE THERE EXIST  SUFFICIENT  EVIDENTIARY  FACTS  AND
INFERENCES,  PRESENTED BY SWORN AFFIDAVIT OR OTHER RELIABLE AND RELEVANT
PROOF, THAT, WHEN VIEWED IN LIGHT OF THE RECORD AS A WHOLE, CONCLUSIVELY
ESTABLISH THE DEFENDANT DID NOT COMMIT SUCH CRIME OR CRIMES.
  S 3. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 3-a to read as follows:
  3-A. THE PROVISIONS OF  PARAGRAPH  (C)  OF  SUBDIVISION  TWO  AND  THE
PROVISIONS  OF SUBDIVISION THREE REQUIRING OR PERMITTING THE DENIAL OF A
MOTION TO VACATE A JUDGMENT PURSUANT TO THIS SECTION SHALL NOT APPLY  TO
A MOTION BROUGHT PURSUANT TO PARAGRAPH (I) OF SUBDIVISION ONE; PROVIDED,
HOWEVER,  THAT  THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY WHERE
THE COURT, BASED ON RECORD EVIDENCE,  DETERMINES  THAT  THE  DEFENDANT'S
FAILURE  TO ACT OR LACK OF DUE DILIGENCE WAS THE DIRECT RESULT OF HIS OR
HER INTENTIONAL USE OF DILATORY TACTICS AIMED AT OBTAINING  A  STRATEGIC
OR  PROCEDURAL  ADVANTAGE IN THE PROSECUTION OF THE APPEAL OF, OR MOTION
TO VACATE, SUCH JUDGMENT.
  S 4. Subdivision 2 of section 440.30 of the criminal procedure law  is
amended to read as follows:
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD14838-01-9

A. 9430                             2

subdivision two of section 440.10 or subdivision two of section  440.20,
the  court  must, EXCEPT AS OTHERWISE PROVIDED BY SUBDIVISION THREE-A OF
SECTION 440.10, 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,  EXCEPT  AS  OTHERWISE  PROVIDED  BY  SUBDIVISION
THREE-A  OF  SECTION 440.10, in its discretion either (a) summarily deny
the motion, or (b) proceed to consider the merits thereof.
  S 5.  This act shall take effect immediately.