Senate Bill S351

                                 BILL NUMBER:  S351

 TITLE OF BILL :

An act to amend the criminal procedure law, in relation to
establishing the actual innocence justice act of 2017

 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 2017".

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, Tankleff s 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 (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 (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. 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 :

2015-2016 - S1299A
2013-2014 - S.49
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.