S T A T E   O F   N E W   Y O R K
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                                 5077--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 12, 2015
                               ___________

Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
  Committee on Codes -- recommitted to the Committee on Codes in accord-
  ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the criminal procedure law, in relation to  establishing
  the actual innocence justice act of 2016

  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 2016".
  S  2.  Subparagraph  (ii) of paragraph (i) of subdivision 1 of section
440.10 of the criminal procedure law, as amended by chapter 368  of  the
laws  of  2015,  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
trafficking,  compelling  prostitution  or trafficking in persons at the
time of the offense from a federal, state  or  local  government  agency
shall  create  a  presumption  that the defendant's participation in the
offense was a result of having been a victim of sex trafficking, compel-
ling prostitution 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.
                                                           LBD00148-03-6

              

A. 5077--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.