NY State Senate Bill 2009-S7868

Archive: Last Bill Status - On Floor Calendar

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 15, 2010	advanced to third reading
Jun 14, 2010	2nd report cal.
Jun 10, 2010	1st report cal.956
Jun 02, 2010	reported and committed to codes
May 18, 2010	referred to judiciary

Votes

- Jun 2, 2010 - Judiciary Committee Vote
  S7868
  
  Aye
  
  12
  
  Nay
  
  3
  
  Aye with Reservations
  
  8
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Judiciary Committee Vote: Jun 2, 2010
      
      aye (12)
      
      Breslin
      
      Diaz
      
      Dilan
      
      Espada
      
      Hassell-Thompson
      
      Klein
      
      Leibell
      
      Onorato
      
      Perkins
      
      Sampson
      
      Savino
      
      Schneiderman
      
      nay (3)
      
      DeFrancisco
      
      Lanza
      
      Volker
      
      aye wr (8)
      
      Adams
      
      Bonacic
      
      LaValle
      
      Maziarz
      
      Nozzolio
      
      Ranzenhofer
      
      Saland
      
      Winner
  Jun 10, 2010 - Codes Committee Vote
  S7868
  
  Aye
  
  11
  
  Nay
  
  4
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Codes Committee Vote: Jun 10, 2010
      
      aye (11)
      
      Breslin
      
      DeFrancisco
      
      Duane
      
      Flanagan
      
      Huntley
      
      Klein
      
      Parker
      
      Saland
      
      Sampson
      
      Schneiderman
      
      Squadron
      
      nay (4)
      
      Bonacic
      
      Golden
      
      Lanza
      
      Volker
      
      aye wr (1)
      
      Perkins

2009-S7868 (ACTIVE) - Details

See Assembly Version of this Bill:: A11150
Law Section:: Court of Claims Act
Laws Affected:: Amd §8-b, Ct Claims Act; add §440.70, CP L

2009-S7868 (ACTIVE) - Summary

Relates to claims for conviction, compensation for claimants who were wrongly incarcerated and the expungement of criminal records for unjustly convicted claimants.

2009-S7868 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7868

 TITLE OF BILL :
An act to amend the court of claims act, in relation to claims for
conviction; and to amend the criminal procedure law, in relation to
the expungement of criminal records

 PURPOSE :
The purpose of this bill is to try to assure that those who have
suffered a wrongful conviction receive fair monetary compensation from
the State without opening the State to liability for every overturned
conviction.

 SUMMARY OF PROVISIONS :
Section 1 of the bill amends §8-b of the Court of Claims Act to modify
the standards for recovery by a claimant who has been exonerated.

Section 2 of the bill requires expungement of the criminal records of
a successful claimant.

Section 3 of the bill provides the effective date.

 JUSTIFICATION :
This is one of six bills that are based on the recommendations of the
Task Force on Wrongful Convictions of the New York State Bar
Association.  That Task Force was created in 2008, and examined 53

cases where a defendant was wrongfully convicted of a crime and later
exonerated.  Through this study, the Task Force identified what it
found to be the causes of these mistakes. Its report was approved by
the Bar Association in 2009, and this bill is intended to address one
of needs that were so identified.

The Court of Claims Act currently provides that a person "convicted
and subsequently imprisoned for one or more felonies or misdemeanors
against the state which he did not commit may... present a claim for
damages against the state." (Section 8-b). However, there are a number
of limitations and restrictions on this right that have proven, over
the years, to deny or limit awards in cases where fairness and justice
would seem to entitle the exonoree to an award. Under subdivision (c)
of section 8-b, the Claimant must prove that "he did not commit any of
the acts charged in the accusatory instrument" or the acts "did not
constitute a felony or misdemeanor...." This means that the Claimant
must prove that he has been exonerated on every charge initially
brought, even if one or more of the charged offenses was dismissed
prior to trial. In addition, subdivision (d) requires the Claimant to
prove that he "did not by his own conduct cause or bring about his
conviction."

This bill would modify the standards for recovery by requiring the
Claimant to prove only that he was exonerated only on each and every
charge submitted to the fact finder. The bill would make clear that
neither the negligence of the defense attorney in the criminal trial,
or a plea entered pursuant to such negligence, nor a plea entered into
due to duress should be deemed to be conduct by which the Claimant
brought about his own conviction, and thereby barring recovery.
However, a plea entered into to mitigate the risk of a longer sentence
would not be a plea entered into under duress.

The bill also offers a successful Claimant the option of accepting
$75,000 per year of incarceration or asking the Court to assess
damages. This assures a successful Claimant of a basic level of
compensation if he wishes. The bill also requires that a successful
Claimant receive subsistence funds to initially support himself.

Finally, the bill requires expungement of the criminal records of a
successful Claimant.
The amendments made by the bill are to try to best assure that those
who have suffered a wrongful conviction receive fair monetary
compensation from the State without opening the State to liability for
every overturned conviction.

 LEGISLATIVE HISTORY :
New bill.

 FISCAL IMPACT :
To be determined.

 EFFECTIVE DATE :
This act shall take effect in one hundred eighty days.

2009-S7868 (ACTIVE) - Bill Text download pdf

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

                                  7868

                            I N  S E N A T E

                              May 18, 2010
                               ___________

Introduced  by  Sen. SCHNEIDERMAN -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary

AN ACT to amend the court of claims  act,  in  relation  to  claims  for
  conviction;  and  to  amend the criminal procedure law, in relation to
  the expungement of criminal records

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

  Section  1. Subdivision 7 of section 8-b of the court of claims act is
renumbered subdivision 8 and subdivision 4, paragraphs (c)  and  (d)  of
subdivision 5 and subdivision 6, as added by chapter 1009 of the laws of
1984,  are amended and two new subdivisions 7 and 9 are added to read as
follows:
  4. The claim shall state facts in  sufficient  detail  to  permit  the
court  to  find  that  claimant is likely to succeed at trial in proving
that (a) he did not commit any of the acts [charged  in  the  accusatory
instrument] SUBMITTED TO THE FACTFINDER or his acts or omissions charged
in  the accusatory instrument did not constitute a felony or misdemeanor
against the state, and (b) he did not by his own conduct cause or  bring
about  his  conviction.    A  CONFESSION  OR ADMISSION LATER FOUND TO BE
FALSE, OR A PLEA OF GUILTY TO A CRIME THAT THE CLAIMANT DID NOT  COMMIT,
DOES NOT CONSTITUTE "CAUSING ONE'S CONVICTION" PURSUANT TO THIS SUBDIVI-
SION.  The  claim  shall be verified by the claimant. If the court finds
after reading the claim that claimant is not likely to succeed at trial,
it shall dismiss the claim, either on its own motion or on the motion of
the state.
  (c) he did not commit any of  the  acts  [charged  in  the  accusatory
instrument] SUBMITTED TO THE FACTFINDER or his acts or omissions charged
in  the accusatory instrument did not constitute a felony or misdemeanor
against the state; and
  (d) he did not by his own conduct cause or bring about his conviction.
CONVICTIONS RESULTING FROM ANY OF THE  FOLLOWING  SHALL  NOT  CONSTITUTE
CONDUCT CAUSING OR BRINGING ABOUT HIS CONVICTION UNDER THIS ACT: (I) THE
NEGLIGENCE  OF  HIS  DEFENSE  ATTORNEY;  (II)  A  COERCED OR INVOLUNTARY
CONFESSION; (III) THE UNCORROBORATED TESTIMONY OF A PERSON OTHER THAN  A

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

                                                           LBD16767-02-0

S. 7868                             2

LAW  ENFORCEMENT OFFICER OF AN ALLEGED ADMISSION OF GUILT BY THE DEFEND-
ANT; OR (IV) A CLAIMANT'S HAVING ENTERED A PLEA OF GUILTY, PROVIDED THAT
THE CLAIMANT IS ABLE TO DEMONSTRATE THAT THE PLEA WAS ENTERED DUE TO THE
NEGLIGENCE OF HIS ATTORNEY OR AS THE RESULT OF DURESS OR COERCION.
  6. If the court finds that the claimant is entitled to a judgment, [it
shall  award  damages  in such sum of money as the court determines will
fairly and reasonably compensate him.] THE CLAIMANT MAY ELECT AS COMPEN-
SATION TO RECEIVE A FIXED SUM OF SEVENTY-FIVE THOUSAND DOLLARS FOR  EACH
YEAR THAT HE OR SHE WAS INCARCERATED, THE TOTAL TO BE COMPUTED BY MULTI-
PLYING  THE  NUMBER OF YEARS OF INCARCERATION AND FRACTION THEREOF TIMES
SEVENTY-FIVE THOUSAND DOLLARS. THIS FIGURE SHALL BE ADJUSTED TO THE YEAR
OF EXONERATION IN ACCORDANCE WITH CHANGES IN THE COST OF  LIVING,  USING
THE  CONSUMER  PRICE  INDEX  (FOR ALL URBAN CONSUMERS, CPU-I, U.S., CITY
AVERAGE, ALL ITEMS, 1982-84=100) PUBLISHED BY THE UNITED  STATES  BUREAU
OF  LABOR  STATISTICS.   THE ADJUSTMENT SHALL BE COMPUTED BY MULTIPLYING
SEVENTY-FIVE THOUSAND DOLLARS TIMES THE CONSUMER PRICE INDEX AVERAGE FOR
THE YEAR OF EXONERATION DIVIDED BY THE CONSUMER PRICE INDEX AVERAGE  FOR
TWO  THOUSAND  TEN,  WHICH IS THE YEAR OF ENACTMENT OF THIS SECTION.  IN
THE ALTERNATIVE, THE CLAIMANT MAY WAIVE HIS OR HER RIGHT TO RECEIVE  THE
FIXED  ANNUAL  SUM SO COMPUTED AND, IN LIEU THEREOF, HE OR SHE MAY ELECT
TO HAVE THE COURT ASSESS HIS OR HER DAMAGES, IN  WHICH  CASE  THE  COURT
SHALL  AWARD DAMAGES IN SUCH SUM AS THE COURT DETERMINES WILL FAIRLY AND
REASONABLY COMPENSATE HIM OR HER.  IN DETERMINING COMPENSATION BY EITHER
METHOD, THERE SHALL BE NO OFFSET OR ADJUSTMENT TO THE TOTAL COMPENSATION
AWARDED FOR ANY EXPENSES INCURRED RELATED TO SECURING OR MAINTAINING THE
CLAIMANT'S CUSTODY OR ANY EXPENSES RELATED TO PROVIDING FOOD,  CLOTHING,
OR MEDICAL SERVICES TO THE CLAIMANT.  IN DETERMINING THE RELEVANT PERIOD
OF  INCARCERATION,  ANY  PORTION OF THE PERIOD OF INCARCERATION THAT WAS
ATTRIBUTABLE TO A SEPARATE AND LAWFUL CONVICTION RESULTING IN A  CONCUR-
RENT  TERM  OF  IMPRISONMENT SHALL BE EXCLUDED.  IN ADDITION TO AWARDING
DAMAGES BY ONE OF THE METHODS SET FORTH ABOVE, THE COURT SHALL ORDER THE
IMMEDIATE SEALING, AT THE EXPENSE OF THE STATE OF NEW YORK, OF  ANY  AND
ALL  CRIMINAL  RECORDS  RELATED  TO THE WRONGFUL ARREST, CONVICTION, AND
SENTENCE OF THE CLAIMANT.  SUCH RECORDS SHALL BE MADE AVAILABLE ONLY  TO
THE  CLAIMANT  AND  THE  STATE IN ANY UNJUST CONVICTION AND IMPRISONMENT
CLAIM UPON AN APPLICATION TO THE COURT.
  7. UPON THE ENTRY OF JUDGMENT IN FAVOR OF THE  CLAIMANT  FOR  WRONGFUL
CONVICTION  OR  A  PARDON BASED ON WRONGFUL CONVICTION, THE STATE OF NEW
YORK SHALL, BASED ON THE CLAIMANT'S NEED, IMMEDIATELY MAKE AVAILABLE  TO
THE  CLAIMANT  SUBSISTENCE FUNDS AND REENTRY SERVICES.  REENTRY SERVICES
AVAILABLE UNDER THIS SECTION SHALL BE AT A MINIMUM  THE  SAME  AS  THOSE
RECEIVED  BY FELONS UPON RELEASE, AND INCLUDE BUT ARE NOT LIMITED TO JOB
TRAINING, EDUCATION, HEALTH CARE, AND ASSISTANCE IN ACQUIRING AFFORDABLE
HOUSING AND CHILD CUSTODY.
  9. IF A DECEASED PERSON WOULD BE ENTITLED TO COMPENSATION  UNDER  THIS
SECTION  IF LIVING, INCLUDING A PERSON WHO RECEIVED A POSTHUMOUS PARDON,
THE PERSON'S HEIRS, LEGAL REPRESENTATIVES, AND ESTATE  ARE  ENTITLED  TO
SUCH COMPENSATION.
  S  2.  The  criminal  procedure law is amended by adding a new section
440.70 to read as follows:
S 440.70 EXPUNGEMENT OF CRIMINAL RECORDS.
  IN THE EVENT THAT A DEFENDANT HAS BEEN ENTITLED TO A JUDGMENT  IN  HIS
FAVOR  UNDER  SUBDIVISION FIVE OF SECTION EIGHT-B OF THE COURT OF CLAIMS
ACT, THE COURT IN WHICH HIS CONVICTION WAS REVERSED  OR  VACATED  OR  IN
WHICH  THE  ACCUSATORY INSTRUMENT WAS DISMISSED SHALL ORDER THE EXPUNGE-
MENT OF ALL CRIMINAL RECORDS RELATED TO THE WRONGFUL ARREST, CONVICTION,

S. 7868                             3

AND SENTENCE AT THE EXPENSE OF THE STATE. SUCH RECORDS SHALL  BE  AVAIL-
ABLE ONLY TO A CLAIMANT AND THE STATE IN AN UNJUST CONVICTION AND IMPRI-
SONMENT CLAIM UPON APPLICATION TO THE COURT.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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Senate Bill S7868

Sponsored By

Archive: Last Bill Status - On Floor Calendar

Actions

Votes

Jun 2, 2010 - Judiciary Committee Vote

Judiciary Committee Vote: Jun 2, 2010

Jun 10, 2010 - Codes Committee Vote

Codes Committee Vote: Jun 10, 2010

2009-S7868 (ACTIVE) - Details

2009-S7868 (ACTIVE) - Summary

2009-S7868 (ACTIVE) - Sponsor Memo

2009-S7868 (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Eric T. Schneiderman

Archive: Last Bill Status - On Floor Calendar

Actions

Votes

2009-S7868 (ACTIVE) - Details

2009-S7868 (ACTIVE) - Summary

2009-S7868 (ACTIVE) - Sponsor Memo

2009-S7868 (ACTIVE) - Bill Text download pdf

Comments