S T A T E O F N E W Y O R K
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10169--A
I N A S S E M B L Y
May 13, 2016
___________
Introduced by M. of A. WRIGHT -- read once and referred to the Committee
on Judiciary -- committee discharged, bill amended, ordered reprinted
as amended and recommitted to said committee
AN ACT to amend the court of claims act and the tax law, in relation to
claims for unjust conviction and imprisonment
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 and may be cited as the "wrongfully
convicted recovery act".
S 2. Section 8-b of the court of claims act, as added by chapter 1009
of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws
of 2007, is amended to read as follows:
S 8-b. Claims for unjust conviction and imprisonment. 1. The legisla-
ture finds and declares that innocent persons who have been wrongly
convicted of crimes and subsequently imprisoned have been frustrated in
seeking legal redress due to a variety of substantive and technical
obstacles in the law and that such persons should have an available
avenue of redress over and above the existing tort remedies to seek
compensation for damages. The legislature intends by enactment of the
provisions of this section that those innocent persons who can demon-
strate by clear and convincing evidence that they were unjustly
convicted and imprisoned be able to recover damages against the state.
In light of the substantial burden of proof that must be carried by such
persons, it is the intent of the legislature that the court, in exercis-
ing its discretion as permitted by law regarding the weight and admissi-
bility of evidence submitted pursuant to this section, shall, in the
interest of justice, give due consideration to difficulties of proof
caused by the passage of time, the death or unavailability of witnesses,
the destruction of evidence or other factors not caused by such persons
or those acting on their behalf.
2. Any person convicted and subsequently imprisoned for one or more
felonies or misdemeanors against the state which he OR SHE did not
commit may, under the conditions hereinafter provided, present a claim
for damages against the state. In scheduling court appearances and
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15337-06-6
A. 10169--A 2
filing deadlines, the court shall give docket priority at each stage of
the proceeding to such claims for damages under this subdivision where
the claimant asserts proof of innocence through DNA evidence. Any
adjournments granted in the course of such a proceeding should be for as
short a time as is practicable.
3. In order to present the claim for unjust conviction and imprison-
ment, claimant must establish by documentary 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) OR
(G-1) 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] CLAUSE (A) 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) the statute, 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) his OR HER claim is not time-barred by the provisions of subdivi-
sion seven of this section.
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 OR SHE did not commit any of the acts charged in the accusa-
tory instrument or his OR HER acts or omissions charged in the accusato-
ry instrument did not constitute a felony or misdemeanor against the
state, and (b) he OR SHE did not by his OR HER own conduct cause or
bring about his OR HER conviction. 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.
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) OR
(G-1) 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. 10169--A 3
(A) hereof] CLAUSE (A) 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) compara-
ble provisions of the former code of criminal procedure or subsequent
law; or (D) the statute, 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 HE OR SHE WAS CONVICTED
OF OR HIS OR HER ACTS OR OMISSIONS charged in the accusatory instrument
or [his acts or omissions charged in the accusatory instrument] THAT ANY
SUCH ACTS did not constitute a felony or misdemeanor against the state;
[and]
(d) he OR SHE did not by his OR HER own conduct cause or bring about
his OR HER conviction; AND
(E) HE OR SHE WAS NOT UNDER SENTENCE FOR A SEPARATE CRIME DURING THE
PERIOD OF TIME FOR WHICH COMPENSATION IS SOUGHT.
6. If the court finds that the claimant is entitled to a judgment, it
shall award damages in [such] THE sum of [money] NOT LESS THAN ONE
MILLION DOLLARS FOR EACH YEAR OF INCARCERATION AND SUCH ADDITIONAL
DAMAGES as the court determines will fairly and reasonably compensate
him OR HER. SUCH ADDITIONAL DAMAGES MAY INCLUDE, BUT NEED NOT BE LIMIT-
ED TO THE FOLLOWING:
(A) COMPENSATION FOR LOST WAGES;
(B) REIMBURSEMENT FOR LEGAL FEES EXPENDED FOR THE DEFENSE OF THE
CONVICTED PERSON AT TRIAL AND UPON APPEAL;
(C) MEDICAL EXPENSES, INCLUDING THERAPY;
(D) ENROLLMENT IN THE HEALTH BENEFIT PLAN ESTABLISHED PURSUANT TO
SECTION ONE HUNDRED SIXTY-ONE OF THE CIVIL SERVICE LAW. THE FULL COST OF
PREMIUM OR SUBSCRIPTION CHARGES FOR SUCH COVERAGE SHALL BE PAID BY THE
STATE;
(E) EDUCATIONAL ASSISTANCE INCLUDING:
(I) FREE TUITION FOR THE CLAIMANT AND FOR ANY OF THE CLAIMANT'S CHIL-
DREN FOR ATTENDING A STATE UNIVERSITY OR COLLEGE;
(II) FREE TUITION OR REIMBURSEMENT OF TUITION FOR THE CLAIMANT AND FOR
ANY OF THE CLAIMANT'S CHILDREN FOR ATTENDING A CUNY UNIVERSITY OR
COLLEGE; AND
(III) FREE TUITION AT A STATE FUNDED VOCATIONAL PROGRAM AND/OR JOB
SKILLS PROGRAM FOR THE CLAIMANT AND FOR ANY OF THE CLAIMANT'S CHILDREN;
(F) REIMBURSEMENT OF ANY CHILD-SUPPORT ARREARS THAT ACCRUED AND WERE
PAID, INCLUDING REIMBURSEMENT TO THE CUSTODIAL PARENT OF THE AMOUNT HE
OR SHE WAS RECEIVING PRIOR TO THE INCARCERATION IF IT WAS MODIFIED BY
VIRTUE OF THE CLAIMANT'S INCARCERATION;
(G) TREATMENT AS VETERANS FOR PURPOSES OF RECEIVING THE FOLLOWING
BENEFITS:
(I) ACCESS TO THE HOMES FOR VETERANS PROGRAM, WHICH OFFERS FIXED-RATE
MORTGAGES WITH INTEREST RATES ONE-HALF PERCENT BELOW THE INTEREST RATES
CHARGED ON SONYMA MORTGAGES, WITH CLOSING COST ASSISTANCE; AND
(II) ELIGIBILITY FOR APPOINTMENT TO NON-COMPETITIVE STATE EMPLOYMENT
POSITIONS PURSUANT TO SECTIONS FIFTY-FIVE-B AND FIFTY-FIVE-C OF THE
CIVIL SERVICE LAW. THOSE EMPLOYEES HIRED UNDER THIS SUBPARAGRAPH SHALL
BE AFFORDED THE SAME OPPORTUNITY TO TAKE PROMOTIONAL EXAMINATIONS AS
PROVIDED TO EMPLOYEES IN THE COMPETITIVE CLASS.
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 THE CHAPTER OF THE LAWS OF TWO THOUSAND SIXTEEN THAT AMENDED
A. 10169--A 4
this section shall file his OR HER claim within two years after [the]
SUCH 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 THE CHAPTER OF THE
LAWS OF TWO THOUSAND SIXTEEN THAT AMENDED this section shall file his OR
HER claim within [two] THREE years after the pardon or dismissal.
8. THE CLAIMANT SHALL BE ENTITLED TO REASONABLE ATTORNEY'S FEES
INCURRED IN THE PROCESS OF VACATING OR REVERSING HIS OR HER CRIMINAL
CONVICTION. THE CLAIMANT MAY PETITION THE COURT OF CLAIMS IN SEEKING
REASONABLE ATTORNEY'S FEES AGAINST THE STATE PURSUANT TO THIS SECTION.
ANY AWARD OF ATTORNEY'S FEES SHALL BE REIMBURSABLE BY THE STATE.
9. ANY AWARD OF DAMAGES PURSUANT TO THE PROVISIONS OF THIS SECTION
SHALL BE EXEMPT FROM INCOME TAX TO THE EXTENT PROVIDED IN SECTION THIR-
TEEN-A OF THE TAX LAW.
S 3. The tax law is amended by adding a new section 13-a to read as
follows:
S 13-A. EXEMPTION FROM TAXATION FOR PERSONS WRONGFULLY CONVICTED AND
IMPRISONED. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, DAMAGE
AWARD AMOUNTS RECEIVED, INCLUDING ACCUMULATED INTEREST, BY PERSONS
WRONGFULLY CONVICTED AND IMPRISONED AS PROVIDED IN SECTION EIGHT-B OF
THE COURT OF CLAIMS ACT, WHETHER OR NOT INCLUDABLE IN INCOME FOR FEDERAL
INCOME TAX PURPOSES, SHALL BE EXEMPT FROM ALL STATE AND LOCAL TAXES
IMPOSED ON OR MEASURED BY INCOME; PROVIDED HOWEVER, THAT THIS EXEMPTION
SHALL NOT APPLY TO AMOUNTS RECEIVED FROM ASSETS ACQUIRED WITH SUCH
ASSETS OR WITH THE PROCEEDS FROM THE SALE OF SUCH ASSETS.
S 4. This act shall take effect immediately.