S T A T E O F N E W Y O R K
________________________________________________________________________
3978--A
2019-2020 Regular Sessions
I N A S S E M B L Y
January 31, 2019
___________
Introduced by M. of A. AUBRY -- 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; to amend the education law, in relation
to establishing wrongful conviction recovery scholarships; and to
amend the civil service law, in relation to allowing additional cred-
its for the wrongfully convicted
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 "wrongful
conviction 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 legis-
lature 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] A PREPONDERANCE OF THE 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 exercising its discretion as permitted by law regarding the
weight and admissibility of evidence submitted pursuant to this section,
shall, in the interest of justice, give due consideration to difficul-
ties of proof caused by the passage of time, the death or unavailability
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06085-03-9
A. 3978--A 2
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 impri-
sonment, 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) 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,
two, three (where the count dismissed was the sole basis for the impri-
sonment complained of) or five of] section 470.20 of the criminal proce-
dure law; or (C) comparable 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] A PREPONDERANCE OF THE 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 impri-
sonment, 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
A. 3978--A 3
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) 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
two, three (where the count dismissed was the sole basis for the impri-
sonment complained of) or five of] section 470.20 of the criminal proce-
dure law; or (C) comparable 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 [charged in the accusato-
ry instrument or his acts or omissions charged in the accusatory instru-
ment] OR OMISSIONS FOR WHICH HE OR SHE WAS CONVICTED OR HIS OR HER ACTS
OR OMISSIONS 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.
6. If the court finds that the claimant is entitled to a judgment, it
shall award damages in such sum of money as the court determines will
fairly and reasonably compensate him OR HER, PROVIDED, IF THE CLAIMANT
WAS INCARCERATED, SUCH SUM SHALL NOT BE LESS THAN AN AWARD CALCULATED AT
A RATE OF ONE MILLION DOLLARS PER YEAR DURING WHICH THE CLAIMANT WAS
INCARCERATED AND WAS NOT UNDER SENTENCE FOR A SEPARATE CRIME. THE COURT
MAY ALSO AWARD REASONABLE ATTORNEYS' FEES INCURRED IN THE CLAIMANT'S
DEFENSE AT TRIAL, INCLUDING ANY POST-TRIAL MOTIONS OR APPEALS, IN THE
PROCESS OF VACATING OR REVERSING HIS OR HER CRIMINAL CONVICTION, AND IN
THE PURSUIT OF A CLAIM UNDER THIS SECTION.
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 NINETEEN 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 NINETEEN THAT AMENDED this section shall file his
OR HER claim within [two] THREE years after the pardon or dismissal.
§ 3. Subsection (c) of section 612 of the tax law is amended by
adding a new paragraph 43 to read as follows:
(43) THE AMOUNT OF ANY DAMAGE AWARD AMOUNTS RECEIVED PURSUANT TO
SECTION EIGHT-B OF THE COURT OF CLAIMS ACT AND NOT EXCLUDABLE FROM
FEDERAL ADJUSTED GROSS INCOME.
§ 4. The education law is amended by adding a new section 668-h to
read as follows:
§ 668-H. WRONGFUL CONVICTION RECOVERY SCHOLARSHIPS. 1. ELIGIBLE
PERSONS. NOTWITHSTANDING SUBDIVISIONS THREE AND FIVE OF SECTION SIX
HUNDRED SIXTY-ONE OF THIS ARTICLE, INDIVIDUALS PURSUANT TO SECTION
EIGHT-B OF THE COURT OF CLAIMS ACT THAT HAVE BEEN DETERMINED TO BE ENTI-
TLED TO A JUDGMENT FOR UNJUST CONVICTION OR UPON THEIR ELECTION ANY
CHILDREN OF AN INDIVIDUAL HAVING BEEN DETERMINED TO BE ENTITLED TO A
JUDGMENT FOR UNJUST CONVICTION SHALL BE ELIGIBLE TO RECEIVE A WRONGFUL
CONVICTION RECOVERY SCHOLARSHIP.
2. AMOUNT. (A) THE PRESIDENT SHALL GRANT ANNUAL SCHOLARSHIPS TO ANY
PERSON ELIGIBLE PURSUANT TO SUBDIVISION ONE OF THIS SECTION. RECIPIENTS
A. 3978--A 4
SHALL BE GRANTED ANNUAL SCHOLARSHIPS IF THEY ARE ATTENDING AN INSTITU-
TION OF THE CITY UNIVERSITY OF NEW YORK OR AN INSTITUTION OF THE STATE
UNIVERSITY OF NEW YORK INCLUDING THE STATUTORY COLLEGES AT CORNELL, THE
COLLEGE OF ENVIRONMENTAL SCIENCE AND FORESTRY AT SYRACUSE AND THE
COLLEGE OF CERAMICS AT ALFRED. THE ANNUAL AWARD SHALL BE AN AMOUNT EQUAL
TO THE TUITION CHARGED AT SUCH INSTITUTION PROVIDED THAT, NOTWITHSTAND-
ING ANY PROVISION OF LAW TO THE CONTRARY, THE TUITION CHARGED TO AWARD
RECIPIENTS SHALL NOT EXCEED THAT CHARGED TO STATE RESIDENT STUDENTS
ATTENDING SUCH INSTITUTION; THE MANDATORY FEES CHARGED AT SUCH INSTITU-
TION; AND THE NON-TUITION COST OF ATTENDANCE AT SUCH INSTITUTION OR
COLLEGE, PROVIDED THAT THE SCHOLARSHIP SHALL NOT EXCEED AN AMOUNT THAT
IS EQUAL TO THE TOTAL COST OF ATTENDANCE DETERMINED FOR FEDERAL TITLE IV
STUDENT FINANCIAL AID PURPOSES, LESS ALL OTHER SCHOLARSHIPS AND GRANTS
PROVIDED BY NEW YORK STATE, OTHER STATES, THE FEDERAL GOVERNMENT, OR
OTHER GOVERNMENTS, AND THE AMOUNT OF EDUCATIONAL BENEFITS PAID UNDER ANY
PROGRAM THAT WOULD DUPLICATE THE PURPOSES OF THIS PROGRAM, PROVIDED THAT
ANY SCHOLARSHIPS OR GRANTS PROVIDED TO A RECIPIENT BY THE INSTITUTION
WHICH ARE INTENDED TO FUND ANY PORTION OF THE DIFFERENCE BETWEEN THE
ANNUAL STATE AWARD AND THE ACTUAL COSTS OF ATTENDANCE AT ANY SUCH INSTI-
TUTION SHALL NOT BE CONSIDERED TO DUPLICATE THE PURPOSES OF THIS
PROGRAM.
(B) "NON-TUITION COST OF ATTENDANCE", AS USED IN THIS SUBDIVISION,
SHALL MEAN: (I) THE ACTUAL AMOUNT CHARGED BY THE INSTITUTION FOR ROOM
AND BOARD, AND (II) AN ALLOWANCE FOR TRANSPORTATION, BOOKS AND SUPPLIES
AS DETERMINED BY THE PRESIDENT AND AS APPROVED BY THE DIRECTOR OF THE
BUDGET, PROVIDED THAT SUCH DETERMINATION SHALL BE MADE NO LATER THAN
DECEMBER FIRST OF EACH YEAR FOR USE IN THE SUCCEEDING ACADEMIC YEAR. IN
THE EVENT A STUDENT DOES NOT INCUR ROOM OR BOARD CHARGES AT THE INSTITU-
TION, "NON-TUITION COST OF ATTENDANCE" SHALL MEAN AN ALLOWANCE FOR ROOM
AND BOARD AS DETERMINED BY THE PRESIDENT AND APPROVED BY THE DIRECTOR OF
THE BUDGET. IN DETERMINING ALLOWANCES PURSUANT TO THIS SUBPARAGRAPH, THE
PRESIDENT MAY TAKE INTO CONSIDERATION THE ALLOWANCES PROVIDED FOR IN THE
PELL GRANT PROGRAM.
(C) IN NO EVENT SHALL THE COMBINATION OF ALL STUDENT FINANCIAL AID
RECEIVED BY A STUDENT EXCEED A RECIPIENT'S TOTAL COST OF ATTENDANCE AT
THE INSTITUTION BEING ATTENDED.
3. DURATION. AWARDS UNDER THIS SECTION SHALL BE PAYABLE FOR EACH OF
NOT MORE THAN FOUR ACADEMIC YEARS OF UNDERGRADUATE STUDY OR FIVE ACADEM-
IC YEARS IF A PROGRAM NORMALLY REQUIRES FIVE YEARS, AS DEFINED BY THE
COMMISSIONER PURSUANT TO ARTICLE THIRTEEN OF THIS TITLE.
§ 5. The civil service law is amended by adding a new section 85-d to
read as follows:
§ 85-D. ADDITIONAL CREDITS ALLOWED FOR THE WRONGFULLY CONVICTED. 1.
ADDITIONAL CREDIT AUTHORIZED. ADDITIONAL CREDITS SHALL BE ALLOWED TO
SUCCESSFUL CLAIMANTS UNDER SECTION EIGHT-B OF THE COURT OF CLAIMS ACT IN
COMPETITIVE EXAMINATIONS FOR ORIGINAL APPOINTMENT. (A) ON ALL ELIGIBLE
LISTS RESULTING FROM COMPETITIVE EXAMINATIONS, THE NAMES OF ELIGIBLE
PERSONS SHALL BE ENTERED IN THE ORDER OF THEIR RESPECTIVE FINAL EARNED
RATINGS ON EXAMINATIONS, WITH THE NAME OF THE ELIGIBLE PERSON WITH THE
HIGHEST FINAL EARNED RATINGS AT THE HEAD OF SUCH LIST, PROVIDED, HOWEV-
ER, THAT FOR THE PURPOSE OF DETERMINING FINAL EARNED RATINGS, SUCCESSFUL
CLAIMANTS UNDER SECTION EIGHT-B OF THE COURT OF CLAIMS ACT SHALL BE
ENTITLED TO RECEIVE AN ADDITIONAL TEN POINTS IN A COMPETITIVE EXAMINA-
TION FOR ORIGINAL APPOINTMENT.
(B) SUCH ADDITIONAL CREDIT SHALL BE ADDED TO THE FINAL EARNED RATING
OF SUCH SUCCESSFUL CLAIMANT AFTER HE OR SHE HAS QUALIFIED IN THE COMPET-
A. 3978--A 5
ITIVE EXAMINATION AND SHALL BE GRANTED ONLY AT THE TIME OF ESTABLISHMENT
OF THE RESULTING ELIGIBLE LIST.
2. APPLICATION FOR ADDITIONAL CREDIT; PROOF OF ELIGIBILITY; ESTABLISH-
MENT OF ELIGIBLE LIST. ANY CANDIDATE, BELIEVING HIMSELF OR HERSELF
ENTITLED TO ADDITIONAL CREDIT IN A COMPETITIVE EXAMINATION AS PROVIDED
IN THIS SECTION, MAY MAKE APPLICATION FOR SUCH ADDITIONAL CREDIT AT ANY
TIME BETWEEN THE DATE OF HIS OR HER APPLICATION FOR EXAMINATION AND THE
DATE OF THE ESTABLISHMENT OF THE RESULTING ELIGIBLE LIST. SUCH CANDI-
DATES SHALL BE ALLOWED A PERIOD OF NOT LESS THAN TWO MONTHS FROM THE
DATE OF THE FILING OF HIS OR HER APPLICATION FOR EXAMINATION IN WHICH TO
ESTABLISH BY APPROPRIATE DOCUMENTARY PROOF HIS OR HER ELIGIBILITY TO
RECEIVE ADDITIONAL CREDIT UNDER THIS SECTION. AT ANY TIME AFTER TWO
MONTHS HAVE ELAPSED SINCE THE FINAL DATE FOR FILING APPLICATIONS FOR A
COMPETITIVE EXAMINATION FOR ORIGINAL APPOINTMENT, THE ELIGIBLE LIST
RESULTING FROM SUCH EXAMINATION MAY BE ESTABLISHED, NOTWITHSTANDING THE
FACT THAT A SUCCESSFUL CLAIMANT WHO HAS APPLIED FOR ADDITIONAL CREDIT
HAS FAILED TO ESTABLISH HIS OR HER ELIGIBILITY TO RECEIVE SUCH ADDI-
TIONAL CREDIT. A CANDIDATE WHO FAILS TO ESTABLISH, BY APPROPRIATE DOCU-
MENTARY PROOF, HIS OR HER ELIGIBILITY TO RECEIVE ADDITIONAL CREDIT BY
THE TIME AN ELIGIBLE LIST IS ESTABLISHED SHALL NOT THEREAFTER BE GRANTED
ADDITIONAL CREDIT ON SUCH ELIGIBLE LIST.
3. USE OF ADDITIONAL CREDIT. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS
SUBDIVISION, NO PERSON WHO HAS RECEIVED A PERMANENT ORIGINAL APPOINTMENT
IN THE CIVIL SERVICE OF THE STATE OR OF ANY CITY OR CIVIL DIVISION THER-
EOF FROM AN ELIGIBLE LIST ON WHICH HE OR SHE WAS ALLOWED THE ADDITIONAL
CREDIT GRANTED BY THIS SECTION AS A SUCCESSFUL CLAIMANT, SHALL THEREAFT-
ER BE ENTITLED TO ANY ADDITIONAL CREDIT UNDER THIS SECTION AS A SUCCESS-
FUL CLAIMANT.
(B) WHERE, AT THE TIME OF ESTABLISHMENT OF AN ELIGIBLE LIST, THE POSI-
TION OF A SUCCESSFUL CLAIMANT ON SUCH LIST HAS NOT BEEN AFFECTED BY THE
ADDITION OF CREDITS GRANTED UNDER THIS SECTION, THE APPOINTMENT OF SUCH
SUCCESSFUL CLAIMANT FROM SUCH ELIGIBLE LIST SHALL NOT BE DEEMED TO HAVE
BEEN MADE FROM AN ELIGIBLE LIST ON WHICH HE OR SHE WAS ALLOWED THE ADDI-
TIONAL CREDIT GRANTED BY THIS SECTION.
(C) IF, AT THE TIME OF APPOINTMENT FROM AN ELIGIBLE LIST, A SUCCESSFUL
CLAIMANT IS IN THE SAME RELATIVE STANDING AMONG THE ELIGIBLE PERSONS WHO
ARE WILLING TO ACCEPT APPOINTMENT AS IF HE OR SHE HAD NOT BEEN GRANTED
THE ADDITIONAL CREDITS AS PROVIDED BY THIS SECTION, HIS OR HER APPOINT-
MENT FROM SUCH ELIGIBLE PERSONS SHALL NOT BE DEEMED TO HAVE BEEN MADE
FROM AN ELIGIBLE LIST ON WHICH HE OR SHE WAS ALLOWED SUCH ADDITIONAL
CREDITS.
(D) WHERE A SUCCESSFUL CLAIMANT HAS BEEN ORIGINALLY APPOINTED FROM AN
ELIGIBLE LIST ON WHICH HE OR SHE WAS ALLOWED SUCH ADDITIONAL CREDIT, BUT
SUCH APPOINTMENT IS THEREAFTER TERMINATED EITHER AT THE END OF THE
PROBATIONARY TERM OR BY RESIGNATION AT OR BEFORE THE END OF THE PROBA-
TIONARY TERM, HE OR SHE SHALL NOT BE DEEMED TO HAVE BEEN APPOINTED, AS
THE CASE MAY BE, FROM AN ELIGIBLE LIST ON WHICH HE OR SHE IS ALLOWED
ADDITIONAL CREDIT, AND SUCH APPOINTMENT SHALL NOT AFFECT HIS OR HER
ELIGIBILITY FOR ADDITIONAL CREDIT IN OTHER EXAMINATIONS.
4. WITHDRAWAL OF APPLICATION; ELECTION TO RELINQUISH ADDITIONAL CRED-
IT. AN APPLICATION FOR ADDITIONAL CREDIT IN A COMPETITIVE EXAMINATION
UNDER THIS SECTION MAY BE WITHDRAWN BY THE APPLICANT AT ANY TIME PRIOR
TO THE ESTABLISHMENT OF THE RESULTING ELIGIBLE LIST. AT ANY TIME DURING
THE TERM OF EXISTENCE OF AN ELIGIBLE LIST RESULTING FROM A COMPETITIVE
EXAMINATION IN WHICH A SUCCESSFUL CLAIMANT HAS RECEIVED THE ADDITIONAL
CREDIT GRANTED BY THIS SECTION, SUCH SUCCESSFUL CLAIMANT MAY ELECT,
A. 3978--A 6
PRIOR TO PERMANENT ORIGINAL APPOINTMENT, TO RELINQUISH THE ADDITIONAL
CREDIT THERETOFORE GRANTED TO HIM OR HER AND ACCEPT THE LOWER POSITION
ON SUCH ELIGIBLE LIST TO WHICH HE OR SHE WOULD OTHERWISE HAVE BEEN ENTI-
TLED; PROVIDED, HOWEVER, THAT SUCH ELECTION SHALL THEREAFTER BE IRREV-
OCABLE. SUCH ELECTION SHALL BE IN WRITING AND SIGNED BY THE SUCCESSFUL
CLAIMANT, AND TRANSMITTED TO THE DEPARTMENT OR THE APPROPRIATE MUNICIPAL
CIVIL SERVICE COMMISSION.
5. ROSTER. THE DEPARTMENT AND EACH MUNICIPAL COMMISSION SHALL ESTAB-
LISH AND MAINTAIN IN ITS OFFICE A ROSTER OF ALL SUCH SUCCESSFUL CLAIM-
ANTS APPOINTED AS A RESULT OF ADDITIONAL CREDITS GRANTED BY THIS SECTION
TO POSITIONS UNDER ITS JURISDICTION. THE APPOINTMENT OF A SUCCESSFUL
CLAIMANT AS A RESULT OF ADDITIONAL CREDITS SHALL BE VOID IF SUCH
SUCCESSFUL CLAIMANT, PRIOR TO SUCH APPOINTMENT, HAD BEEN APPOINTED AS A
RESULT OF ADDITIONAL CREDITS GRANTED BY THIS SECTION.
§ 6. This act shall take effect immediately and shall apply to claims
filed on and after such date.