senate Bill S49A

2013-2014 Legislative Session

Establishes the actual innocence justice act 2014

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Sponsored By

Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 23, 2014 print number 49a
amend and recommit to codes
Jan 08, 2014 referred to codes
Jan 09, 2013 referred to codes

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S49 - Bill Details

See Assembly Version of this Bill:
A3492A
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §440.10, CP L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S729A, A6551A, A6651A
2009-2010: S6234C, A6219, A9736B, S6234B

S49 - Bill Texts

view summary

Establishes the actual innocence justice act of 2014; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so.

view sponsor memo
BILL NUMBER:S49

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to establishing the
actual innocence justice act of 2013

PURPOSE:
This bill would permit the Court in which a judgment of conviction was
entered to grant a post conviction motion to vacate a judgment based
on actual innocence.

SUMMARY OF PROVISIONS:
Section one of the bill entitles the act the "Actual Innocence Justice
Act of 2013".

Section two of the bill adds a new paragraph (j) to subdivision one of
section 440.10 of the Criminal Procedure Law to provide that actual
innocence shall be a ground upon which a defendant may base his or
her post-conviction motion.

Section three of the bill amends subdivision (4) of section 440.10 of
the Criminal Procedure Law to require in certain circumstances that
the court dismiss the accusatory instrument.

Section four of the bill adds a new paragraph (9) of section 440.10 to
require in certain circumstances the court address the merits of any
claim for relief.

Section five of the bill establishes the effective date.

JUSTIFICATION:
Over the past twenty years, 284 DNA exonerations of convicted
innocents in the United States have drawn the attention of citizens
and legislatures around the country to the phenomenon of wrongful
convictions of the innocent. According to the data provided by the
Innocence Project, twenty-six, or nearly 10%, of those 284
exonerations were in the State of New York. In addition, the New York
State Bar Association's Task Force on Wrongful Convictions recently
identified and studied fifty-three "judicial/formal exonerations"
over the last twenty-odd years, thirty-one of them non-DNA
exonerations. Thirty-nine additional non-DNA exonerations have been
identified in preparing this legislation, mainly by examining the
results of compensation actions pursuant to Court of Claims Act
8-b. Thus, at least ninety-five men and women have been clearly
identified in New York as having spent years, sometimes decades, in
prison for murders, rapes, and other serious crimes they did not
commit. A significant number of other reversals and vacaturs have
occurred where there was strong evidence of innocence, but for one
reason or another cannot be included in a set of clear-cut
"exonerations." Thus wrongful convictions are not a trivial problem
in New York.
As Judge Lippman recently wrote in Hurrell-Harring v. State:
"Wrongful conviction, the ultimate sign of a criminal justice system's
breakdown and failure, has been documented in too many cases." 2010
WL 1791000 (N.Y. May 6, 2010).


Many exonerations in New York were achieved through the litigation
of CPL .440.10 motions, demonstrating that New York's post-conviction
statute is an excellent avenue of collateral relief
for many innocent individuals - a good model, in fact, for other
states to follow. Yet it has become clear that some state court
judges are not providing justice in such cases, often because of
their interpretation of the procedural limitations of the current
law. In the case of Marty Tankleff, the lower court denied Tankleffs
motion to vacate judgment based on 440.10(1)(g) and 440.10(1)(h).
Tankleffs direct appeal of the verdict to the appellate division and
a federal habeas appeal had also been previously denied. In denying
the motion based on 440.10(1) (g), the trial Court found the
defendant did not exercise due diligence in moving for a new trial.
The 440.10(1) (h) motion was denied based on the court's finding that
there exists no constitutional right to relief based on actual
innocence. If it had not been for the appellate division remitting
the case to the county court for a new trial, Tankleffs wrongful
conviction would most likely never have been heard due to the limited
nature of the few remedies available to him. It is intolerable that
any person in New York whose trial has been shown to have led to a
manifest injustice should remain in prison on a technicality under
state law.

For individuals like Marty Tankleff, the Criminal Procedure Law
currently offers only limited hope for collateral relief by
establishing a series of post-conviction procedural roadblocks that,
taken together, can deprive an innocent person from having his or her
innocence claim fully and fairly aired. The tragic result--as
graphically demonstrated in hundreds of wrongful conviction cases
throughout the country - is that an innocent person can spend years
or even decades behind bars while the real perpetrator remains free
to commit more crimes and terrorize additional victims. This bill is
intended to renew and strengthen the authorization of state court
judges, despite any and all procedural or other technical obstacles,
to re-visit and give a fair hearing to any case that presents to the
reasonable mind a serious doubt about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various
jurisdictions around the country by way of a "free-standing" claim of
actual innocence on constitutional grounds. The Supreme Court has not
yet explicitly held that such a claim can be brought under the United
States Constitution. As Justice Roberts wrote for a 5-4 majority in
DA's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a
federal right to be released upon proof of actual innocence exists is
an open question." But several state courts have held that such a
claim exists under their state constitutions (including Illinois,
California, Connecticut, Missouri, New Mexico, and Texas). The New
York Court of Appeals has yet to consider the issue directly,
although a handful of trial courts have begun to do so and found
compelling grounds to recognize a convicted person's right to
post-conviction relief based on proof of actual innocence under state
law. In 2003, a New York state judge held for the first time that
Article I § 6 of the New York State Constitution prohibits the
execution or incarceration of an innocent person and that a
free-standing claim of actual innocence is therefore cognizable under
440.10(1) (h). People v. Cole, 1 Misc. 3d 531, 765 N.
Y.S. 2d 477 (Sup. Ct., Kings Cty. 2003). In 2009 two other trial court


judges held similarly and granted relief on the ground of actual
innocence on constitutional grounds under CPL 440.10(1) (h), the
movants having shown they were innocent by clear and convincing
evidence. People v. Bermudez, 2009 N.Y. Slip Op. 52302U, 25 Misc. 3d
1226A (Sup. Ct., N.Y. Cty., Nov. 9, 2009) People v. Wheeler-Whichard,
2009 N.Y. Slip Op.
51647(U), (Sup. Ct., Kings Cty;, July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is
now an appropriate basis for New York courts to overturn a criminal
conviction under a newly added paragraph (i) of CPL § 440.10(1). The
judge is directed to grant relief where it is "established by clear
and convincing evidence that no trier of fact would have convicted
the defendant under a reasonable doubt standard and in light of all
available evidence." Thus, the judge is to consider all relevant
evidence without regard to trial rules of admissibility. Paragraph
(1)(4) is amended to clarify that, as held in Cole, Bermudez, and
Wheeler-Whichard, the proper remedy for such a finding is vacatur of
the conviction and dismissal of the indictment.

In addition, a new paragraph (9) clarifies that convicted people who
can demonstrate a reasonable probability that they are innocent will
have the right to challenge their convictions under the statute,
notwithstanding any other procedural and other technical provisions
of the statute that would have prevented them from doing so. Several
states have taken for granted that due process requires them to
forgive these "procedural defaults" where a likelihood of innocence
is present. See, e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn.
2001) Reedy v. Wright, 60 Va. Cir. 18,26 (Va. Cir. Ct. 2002) i State
v. Pope, 80 P.3d 1232, 318 Mont. 383 (2003); Clay v.
Dormire, 37 S.W.3d 214, 217 (Mo. 2000). This paragraph is intended to
provide relief from procedural defaults or other technical
requirements in addition to, and independently of, any judicial
finding that such relief is required under the Due Process Clause of
either the Federal or State Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants
with an opportunity to fully vindicate their rights and to provide a
post-conviction court with an opportunity to correct miscarriages of
justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of
justice with the greatest call on the Court's conscience is a long
prison sentence or execution of a person who is entirely innocent of
the crime for which he is being punished. These amendments are
intended to require judges to treat claims of actual innocence with
the seriousness they warrant, and to permit them to adjudicate
reasonable claims of innocence without becoming entangled in legal
uncertainties and technicalities.

The grounds upon which a defendant can make a motion to vacate
judgment must be expanded.
It is presumably a rare instance where one previously convicted is
able to later conclusively satisfy the court that he or she in fact
did not commit the criminal acts that form the basis of that
conviction. In these rare and exceptional cases, the administration
of justice would be deeply flawed if a set of procedural restrictions
could permanently foreclose any option of overturning a wrongful
conviction and offering a new trial to an innocent defendant. This


bill is intended to address these rare instances by creating an
express provision, within the existing CPL post-conviction framework,
for "actual innocence" to be adjudicated and true justice achieved.

LEGISLATIVE HISTORY:
2011-12: S.729-A
2009-10: S.6234-C Referred to Codes and Advanced to
3rd Reading

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   49

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

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

AN ACT to amend the criminal procedure law, in relation to  establishing
  the actual innocence justice act of 2013

  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 as the "actual  inno-
cence justice act of 2013".
  S  2.  Subparagraph  (ii) of paragraph (i) of subdivision 1 of section
440.10 of the criminal procedure law, as added by  chapter  332  of  the
laws  of  2010,  is  amended and a new paragraph (j) is added to read as
follows:
  (ii) official documentation of the defendant's status as a  victim  of
sex  trafficking  or  trafficking  in persons at the time of the offense
from a federal, state or local government agency shall create a presump-
tion that the defendant's participation in the offense was a  result  of
having  been  a victim of sex trafficking or trafficking in persons, but
shall not be required for granting a motion under this paragraph[.]; OR
  (J) 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  IT  IS  ESTABLISHED  BY  CLEAR AND CONVINCING
EVIDENCE THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT  UNDER
A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE.
  S 3. Subdivision 4 of section 440.10 of the criminal procedure law, as
amended  by  chapter  332  of  the  laws  of 2010, is amended to read as
follows:
  4. If the court grants the motion, it  must,  except  as  provided  in
subdivision  five  or six of this section, vacate the judgment, and must
dismiss the accusatory instrument, or order a new trial,  or  take  such
other  action  as is appropriate in the circumstances.  IF THE DEFENDANT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01072-01-3

S. 49                               2

HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU-
ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND-
ANT OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND  IN
LIGHT  OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE ACCUSATORY
INSTRUMENT.
  S 4. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 9 to read as follows:
  9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST
ADDRESS THE MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT  CAN  SHOW,
IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB-
ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
  S 5. This act shall take effect immediately.

Co-Sponsors

S49A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A3492A
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §440.10, CP L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S729A, A6551A, A6651A
2009-2010: S6234C, A6219, A9736B, S6234B

S49A (ACTIVE) - Bill Texts

view summary

Establishes the actual innocence justice act of 2014; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so.

view sponsor memo
BILL NUMBER:S49A

TITLE OF BILL: An act to amend the criminal procedure law, in
relation to establishing the actual innocence justice act of 2014

PURPOSE:

This bill would permit the Court in which a judgment of conviction was
entered to grant a post-conviction motion to vacate a judgment based
on actual innocence.

SUMMARY OF PROVISIONS:

Section one of the bill entitles the act the "Actual Innocence Justice
Act of 2014".

Section two of the bill adds a new paragraph (j) to subdivision one of
section 440.10 of the Criminal Procedure Law to provide that actual
innocence shall be a ground upon which a defendant may base his or her
post-conviction motion.

Section three of the bill amends subdivision (4) of section 440.10 of
the Criminal Procedure Law to require in certain circumstances that
the court dismiss the accusatory instrument.

Section four of the bill adds a new paragraph (8) of section 440.10 to
require in certain circumstances the court address the merits of any
claim for relief.

Section five of the bill establishes the effective date.

JUSTIFICATION:

Over the past twenty years, 284 DNA exonerations of convicted
innocents in the United States have drawn the attention of citizens
and legislatures around the country to the phenomenon of wrongful
convictions of the innocent. According to the data provided by the
Innocence Project, twenty-six, or nearly 10%, of those 284
exonerations were in the State of New York. In addition, the New York
State Bar Association's Task Force on Wrongful Convictions recently
identified and studied fifty-three "judicial/formal exonerations" over
the last twenty-odd years, thirty-one of them non-DNA exonerations.
Thirty-nine additional non-DNA exonerations have been identified in
preparing this legislation, mainly by examining the results of
compensation actions pursuant to Court of Claims Act § 8-b. Thus, at
least ninety-five men and women have been clearly identified in New
York as having spent years, sometimes decades, in prison for murders,
rapes, and other serious crimes they did not commit. A significant
number of other reversals and vacaturs have occurred where there was
strong evidence of innocence, but for one reason or another cannot be
included in a set of clear-cut "exonerations." Thus wrongful
convictions are not a trivial problem in New York. As Judge Lippman
recently wrote in Hurrell-Harring v. State: "Wrongful conviction, the
ultimate sign of a criminal justice system's breakdown and failure,
has been documented in too many cases." 2010 WL 1791000 (N.Y. May 6,
2010).


Many exonerations in New York were achieved through the litigation of
CPL § 440.10 motions, demonstrating that New York's post-conviction
statute is an excellent avenue of collateral relief for many innocent
individuals - a good model, in fact, for other states to follow. Yet
it has become clear that some state court judges are not providing
justice in such cases, often because of their interpretation of the
procedural limitations of the current law. In the case of Marty
Tankleff, the lower court denied Tankleffs motion to vacate judgment
based on 440.10(1)(g) and 440.10(1)(h). Tankleffs direct appeal of
the verdict to the appellate division and a federal habeas appeal had
also been previously denied. In denying the motion based on 440.10(1)
(g), the trial Court found the defendant did not exercise due
diligence in moving for a new trial. The 440.10(1) (h) motion was
denied based on the court's finding that there exists no
constitutional right to relief based on actual innocence. If it had
not been for the appellate division remitting the case to the county
court for a new trial, Tankleffs wrongful conviction would most likely
never have been heard due to the limited nature of the few remedies
available to him. It is intolerable that any person in New York whose
trial has been shown to have led to a manifest injustice should remain
in prison on a technicality under state law.

For individuals like Marty Tankleff, the Criminal Procedure Law
currently offers only limited hope for collateral relief by
establishing a series of post-conviction procedural roadblocks that,
taken together, can deprive an innocent person from having his or her
innocence claim fully and fairly aired. The tragic result--as
graphically demonstrated in hundreds of wrongful conviction cases
throughout the country - is that an innocent person can spend years or
even decades behind bars while the real perpetrator remains free to
commit more crimes and terrorize additional victims. This bill is
intended to renew and strengthen the authorization of state court
judges, despite any and all procedural or other technical obstacles,
to re-visit and give a fair hearing to any case that presents to the
reasonable mind a serious doubt about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various
jurisdictions around the country by way of a "freestanding" claim of
actual innocence on constitutional grounds. The Supreme Court has not
yet explicitly held that such a claim can be brought under the United
States Constitution. As Justice Roberts wrote for a 5-4 majority in
DA's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a
federal right to be released upon proof of actual innocence exists is
an open question." But several state courts have held that such a
claim exists under their state constitutions (including Illinois,
California, Connecticut, Missouri, New Mexico, and Texas). The New
York Court of Appeals has yet to consider the issue directly, although
a handful of trial courts have begun to do so and found compelling
grounds to recognize a convicted person's right to post-conviction
relief based on proof of actual innocence under state law. In 2003, a
New York state judge held for the first time that Article I § 6 of the
New York State Constitution prohibits the execution or incarceration
of an innocent person and that a freestanding claim of actual
innocence is therefore cognizable under 440.10(1) (h). People v. Cole,
1 Misc. 3d 531, 765 N. Y.S. 2d 477 (Sup. Ct., Kings Cty. 2003). In
2009 two other trial court judges held similarly and granted relief on
the ground of actual innocence on constitutional grounds under CPL


440.10(1) (h), the movants having shown they were innocent by clear
and convincing evidence. People v. Bermudez, 2009 N.Y. Slip Op.
52302U, 25 Misc. 3d 1226A (Sup. Ct., N.Y. Cty., Nov. 9, 2009) People
v. Wheeler-Whichard, 2009 N.Y. Slip Op. 51647(U), (Sup. Ct., Kings
Cty., July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is
now an appropriate basis for New York courts to overturn a criminal
conviction under a newly added paragraph (1) of CPL § 440.10(1), The
judge is directed to grant relief where it is "established by clear
and convincing evidence that no trier of fact would have convicted the
defendant under a reasonable doubt standard and in light of all
available evidence." Thus, the judge is to consider all relevant
evidence without regard to trial rules of admissibility. Paragraph
(1)(4) is amended to clarify that, as held in Cole, Bermudez, and
Wheeler-Whichard, the proper remedy for such a finding is vacatur of
the conviction and dismissal of the indictment.

In addition, a new paragraph (8) clarifies that convicted people who
can demonstrate a reasonable probability that they are innocent will
have the right to challenge their convictions under the statute,
notwithstanding any other procedural and other technical provisions of
the statute that would have prevented them from doing so. Several
states have taken for granted that due process requires them to
forgive these "procedural defaults" where a likelihood of innocence is
present. See, e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001)
Reedy v. Wright, 60 Va. Cir. 18, 26 (Va. Cir. Ct. 2002) i State v.
Pope, 80 P.3d 1232, 318 Mont. 383 (2003); Clay v. Doiluire, 37 S.W.3d
214, 217 (Mo. 2000). This paragraph is intended to provide relief from
procedural defaults or other technical requirements in addition to,
and independently of, any judicial finding that such relief is
required under the Due Process Clause of either the Federal or State
Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants
with an opportunity to fully vindicate their rights and to provide a
post-conviction court with an opportunity to correct miscarriages of
justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of
justice with the greatest call on the Court's conscience is a long
prison sentence or execution of a person who is entirely innocent of
the crime for which he is being punished. These amendments are
intended to require judges to treat claims of actual innocence with
the seriousness they warrant, and to permit them to adjudicate
reasonable claims of innocence without becoming entangled in legal
uncertainties and technicalities.

The grounds upon which a defendant can make a motion to vacate
judgment must be expanded. It is presumably a rare instance where one
previously convicted is able to later conclusively satisfy the court
that he or she in fact did not commit the criminal acts that form the
basis of that conviction. In these rare and exceptional cases, the
administration of justice would be deeply flawed if a set of
procedural restrictions could permanently foreclose any option of
overturning a wrongful conviction and offering a new trial to an
innocent defendant. This bill is intended to address these rare
instances by creating an express provision, within the existing CPL


post-conviction framework, for "actual innocence" to be adjudicated
and true justice achieved.

LEGISLATIVE HISTORY:

2011-12: S.729-A
2009-10: S.6234-C Referred to Codes and Advanced to 3rd Reading

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  49--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by Sens. PERALTA, ESPAILLAT -- read twice and ordered print-
  ed, and when printed to be committed to  the  Committee  on  Codes  --
  recommitted  to  the Committee on Codes in accordance with Senate Rule
  6, sec. 8 -- committee discharged, bill amended, ordered reprinted  as
  amended and recommitted to said committee

AN  ACT to amend the criminal procedure law, in relation to establishing
  the actual innocence justice act of 2014

  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 as the "actual inno-
cence justice act of 2014".
  S 2. Subparagraph (ii) of paragraph (i) of subdivision  1  of  section
440.10  of  the  criminal  procedure law, as added by chapter 332 of the
laws of 2010, is amended and a new paragraph (j) is  added  to  read  as
follows:
  (ii)  official  documentation of the defendant's status as a victim of
sex trafficking or trafficking in persons at the  time  of  the  offense
from a federal, state or local government agency shall create a presump-
tion  that  the defendant's participation in the offense was a result of
having been a victim of sex trafficking or trafficking in  persons,  but
shall not be required for granting a motion under this paragraph[.]; OR
  (J) 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  IT  IS  ESTABLISHED  BY  CLEAR  AND  CONVINCING
EVIDENCE  THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT UNDER
A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE.
  S 3. Subdivision 4 of section 440.10 of the criminal procedure law, as
amended by chapter 332 of the laws  of  2010,  is  amended  to  read  as
follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01072-02-4

S. 49--A                            2

  4.  If  the  court  grants  the motion, it must, except as provided in
subdivision five or six of this section, vacate the judgment,  and  must
dismiss  the  accusatory  instrument, or order a new trial, or take such
other action as is appropriate in the circumstances.   IF THE  DEFENDANT
HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU-
ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND-
ANT  OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND IN
LIGHT OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE  ACCUSATORY
INSTRUMENT.
  S 4. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 9 to read as follows:
  9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST
ADDRESS  THE  MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT CAN SHOW,
IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB-
ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
  S 5. This act shall take effect immediately.

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