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