The New York State Senate

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

                                 5306--A

                       2017-2018 Regular Sessions

                          I N  A S S E M B L Y

                            February 7, 2017
                               ___________

Introduced by M. of A. AUBRY, BENEDETTO, D'URSO, BARRON, MOSLEY, COLTON,
  CRESPO,  WILLIAMS, L. ROSENTHAL, McDONOUGH, DE LA ROSA, DICKENS, COOK,
  SEPULVEDA, BLAKE,  SIMON,  HYNDMAN,  JAFFEE,  PEOPLES-STOKES,  HOOPER,
  GOTTFRIED, ORTIZ, MORINELLO, SOLAGES, TITONE, SEAWRIGHT -- Multi-Spon-
  sored  by  --  M. of A.   CAHILL, HIKIND, M. G. MILLER, WRIGHT -- read
  once and referred to the Committee on Judiciary -- recommitted to  the
  Committee  on  Judiciary in accordance with Assembly Rule 3, sec. 2 --
  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".
  §  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:
  § 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-

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

                                                           LBD08758-02-8

A. 5306--A                          2

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
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

A. 5306--A                          3

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)  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

A. 5306--A                          4

  (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  EIGHTEEN  THAT  AMENDED
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 EIGHTEEN 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.
  §  3.  The  tax law is amended by adding a new section 13-a to read as
follows:
  § 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.
  § 4. This act shall take effect immediately.