S T A T E O F N E W Y O R K
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4543
2021-2022 Regular Sessions
I N A S S E M B L Y
February 4, 2021
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Introduced by M. of A. O'DONNELL, RICHARDSON -- read once and referred
to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to establishing
the actual innocence justice act
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".
§ 2. Paragraph (k) of subdivision 1 of section 440.10 of the criminal
procedure law, as added by chapter 132 of the laws of 2019, is amended
and a new paragraph (l) is added to read as follows:
(k) The judgment occurred prior to the effective date of this para-
graph and is a conviction for an offense as defined in subparagraph (i)
or (ii) of paragraph (k) of subdivision three of section 160.50 of this
part, in which case the court shall presume that a conviction by plea
for the aforementioned offenses was not knowing, voluntary and intelli-
gent if it has severe or ongoing consequences, including but not limited
to potential or actual immigration consequences, and shall presume that
a conviction by verdict for the aforementioned offenses constitutes
cruel and unusual punishment under section five of article one of the
state constitution, based on those consequences. The people may rebut
these presumptions[.]; OR
(L) 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.
§ 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.
LBD08897-01-1
A. 4543 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.
§ 4. Section 440.10 of the criminal procedure law is amended by adding
a new subdivision 10 to read as follows:
10. 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
PROBABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
§ 5. This act shall take effect immediately.