S T A T E O F N E W Y O R K
________________________________________________________________________
6350
2011-2012 Regular Sessions
I N A S S E M B L Y
March 15, 2011
___________
Introduced by M. of A. LANCMAN -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the court of claims act, in relation to enacting the
"wrongful imprisonment fair compensation act"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be cited as
the "wrongful imprisonment fair compensation act".
S 2. Subdivisions 5, 6 and 7 of section 8-b of the court of claims
act, as added by chapter 1009 of the laws of 1984, are amended to read
as follows:
5. In order to obtain a judgment in his OR HER favor, claimant must
prove by clear and convincing evidence that:
(a) he OR SHE has been convicted of one or more felonies or misdemea-
nors against the state and subsequently sentenced to a term of imprison-
ment, and has served all or any part of the sentence; and
(b) (i) he OR SHE has been pardoned upon the ground of innocence of
the crime or crimes for which he OR SHE was sentenced and which are the
grounds for the complaint; or (ii) his OR HER judgment of conviction was
reversed or vacated, and the accusatory instrument dismissed or, if a
new trial was ordered, either he OR SHE was found not guilty at the new
trial or he OR SHE was not retried and the accusatory instrument
dismissed; provided that the [judgement] JUDGMENT of conviction was
reversed or vacated, and the accusatory instrument was dismissed, on any
of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of
subdivision one of section 440.10 of the criminal procedure law; or (B)
subdivision one (where based upon grounds set forth in item (A) [hereof]
OF THIS SUBPARAGRAPH), two, three (where the count dismissed was the
sole basis for the imprisonment complained of) or five of section 470.20
of the criminal procedure law; or (C) comparable provisions of the
former code of criminal procedure or subsequent law; or (D) the statute,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08332-01-1
A. 6350 2
or application thereof, on which the accusatory instrument was based
violated the constitution of the United States or the state of New York;
and
(c) he OR SHE did not commit any of the acts charged in the accusatory
instrument [or his acts or omissions charged in the accusatory instru-
ment did not constitute a felony or misdemeanor against the state] AND
FOR WHICH HE OR SHE WAS INCARCERATED; and
(d) he OR SHE did not by his OR HER own conduct cause or bring about
his OR HER conviction, EXCLUDING ANY STATEMENT MADE OR PROVIDED BY THE
CLAIMANT IN THE COURSE OF A CUSTODIAL INTERROGATION OR ANY ERROR ON THE
PART OF THE CLAIMANT'S COUNSEL.
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 OR HER, WITHOUT ANY OFFSETS AGAINST
THE COST OF INCARCERATING THE CLAIMANT, AND THE COURT SHALL LIKEWISE
AWARD THE CLAIMANT REASONABLE FEES FOR THE SERVICES OF THE ATTORNEYS,
INVESTIGATORS, EXPERTS AND OTHERS WHICH THE COURT DETERMINES WERE
REASONABLY USED IN OBTAINING THE PRIOR RELIEF NECESSARY TO PRESENT A
CLAIM PURSUANT TO SUBDIVISION THREE OF THIS SECTION AND IN OBTAINING THE
JUDGMENT IN THIS COURT FOR WHICH THE CLAIMANT IS BEING COMPENSATED
PURSUANT TO THIS SUBDIVISION. UPON THE DEATH OF A WRONGFULLY CONVICTED
INDIVIDUAL, SUCH INDIVIDUAL'S CLAIM AND COMPENSATION PURSUANT TO THIS
SECTION BECOMES THE PROPERTY OF SUCH INDIVIDUAL'S ESTATE.
7. Any person claiming compensation under this section based on a
pardon that was granted before the effective date of this section or the
dismissal of an accusatory instrument that occurred before the effective
date of this section shall file his OR HER claim within two years after
the effective date of this section. Any person claiming compensation
under this section based on a pardon that was granted on or after the
effective date of this section or the dismissal of an accusatory instru-
ment that occurred on or after the effective date of this section shall
file his OR HER claim within two years after the pardon or dismissal;
PROVIDED, HOWEVER, THAT WHERE THE EVIDENCE NECESSARY TO ESTABLISH SUCH A
CLAIM WAS NOT DISCOVERED DESPITE DUE DILIGENCE UNTIL AFTER THE TWO-YEAR
LIMIT TO FILE SUCH ACTION EXPIRED, SUCH ACTION MAY BE COMMENCED WITHIN
ONE YEAR OF THE DATE OF DISCOVERY OF FACTS WHICH WOULD REASONABLY LEAD
TO SUCH DISCOVERY.
S 3. This act shall take effect immediately.