S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2878--A
                                                          Cal. No. 32
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 30, 2023
                                ___________
 
 Introduced by M. of A. AUBRY, KIM, TAYLOR, FORREST, BURGOS, REYES, HEVE-
   SI,  FAHY,  O'DONNELL,  MITAYNES,  ANDERSON,  MAMDANI, JACKSON, CLARK,
   SIMON,  GONZALEZ-ROJAS,  SEAWRIGHT,   CARROLL,   GALLAGHER,   DARLING,
   BURDICK,  CRUZ,  EPSTEIN, HUNTER, MEEKS, WEPRIN, KELLES, L. ROSENTHAL,
   OTIS, COOK, DINOWITZ, SEPTIMO, GIBBS, DICKENS, GLICK, DAVILA, HYNDMAN,
   PRETLOW, RAMOS, TAPIA, LUNSFORD, ARDILA, SIMONE, RAGA, SHIMSKY,  ALVA-
   REZ, DE LOS SANTOS, BORES, LEVENBERG, WALKER -- read once and referred
   to  the  Committee  on Codes -- advanced to a third reading, passed by
   Assembly and delivered to the Senate, recalled from the  Senate,  vote
   reconsidered,  bill amended, ordered reprinted, retaining its place on
   the order of third reading
 
 AN ACT to amend the criminal procedure law, in relation  to  motions  to
   vacate judgment; and to repeal certain provisions of such law relating
   thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The criminal procedure law is amended  by  adding  two  new
 sections 440.00 and 440.11 to read as follows:
 § 440.00 DEFINITION.
   AS USED IN THIS ARTICLE, THE TERM "APPLICANT" MEANS A PERSON PREVIOUS-
 LY CONVICTED OF A CRIME WHO IS APPLYING FOR RELIEF UNDER THIS ARTICLE.
 § 440.11 MOTION TO VACATE JUDGMENT; CHANGE IN THE LAW.
   1.  AT  ANY TIME AFTER THE ENTRY OF A JUDGMENT OBTAINED AT TRIAL OR BY
 PLEA, THE COURT IN WHICH IT WAS ENTERED MAY, UPON MOTION OF  THE  APPLI-
 CANT,  VACATE  SUCH  CONVICTION  UPON  THE GROUND THAT THE APPLICANT WAS
 CONVICTED OF ANY OFFENSE IN THE STATE OF NEW YORK WHICH HAS BEEN  SUBSE-
 QUENTLY DECRIMINALIZED AND IS THUS A LEGAL NULLITY.
   2.  IF  THE  COURT GRANTS A MOTION UNDER THIS SECTION, IT SHALL VACATE
 THE CONVICTION ON THE MERITS, DISMISS THE  ACCUSATORY  INSTRUMENT,  SEAL
 THE CONVICTION, AND MAY TAKE SUCH ADDITIONAL ACTION AS IS APPROPRIATE IN
 THE CIRCUMSTANCES.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00806-05-3
 A. 2878--A                          2
 
   §  2. Section 440.10 of the criminal procedure law, paragraph (g-1) of
 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph  (h)
 of  subdivision  1,  paragraph (a) of subdivision 3 and subdivision 4 as
 amended and subdivisions 7 and 8 as renumbered by  chapter  332  of  the
 laws  of  2010,  paragraph  (i)  of  subdivision  1 and subdivision 6 as
 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision
 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi-
 vision 1 as amended by chapter 92 of the laws of  2021,  paragraphs  (b)
 and  (c) of subdivision 2 as amended by chapter 501 of the laws of 2021,
 and subdivision 9 as added by section 4 of part OO of chapter 55 of  the
 laws of 2019, is amended to read as follows:
 § 440.10 Motion to vacate judgment.
   1.  At  any time after the entry of a judgment OBTAINED AT TRIAL OR BY
 PLEA, the court in which it was entered may, upon motion of the [defend-
 ant] APPLICANT, vacate such judgment upon the ground that:
   (a) The court did not have jurisdiction of the action or of the person
 of the [defendant] APPLICANT; or
   (b) The judgment was procured by duress, misrepresentation or fraud on
 the part of the court or a prosecutor or  a  person  acting  for  or  in
 behalf of a court or a prosecutor; or
   (c)  [Material  evidence  adduced at a trial] EVIDENCE THAT WAS LIKELY
 RELIED UPON BY A FACT FINDER resulting in the judgment AT TRIAL OR  THAT
 WAS  LIKELY RELIED UPON BY ANY PARTY AS A BASIS FOR A PLEA AGREEMENT was
 false [and was, prior to the entry of the judgment, known by the  prose-
 cutor or by the court to be false]; or
   (d) [Material evidence adduced by the people at a trial] EVIDENCE THAT
 WAS  LIKELY  RELIED  UPON  BY A FACT FINDER resulting in the judgment AT
 TRIAL OR THAT WAS LIKELY RELIED UPON BY ANY PARTY AS A BASIS FOR A  PLEA
 AGREEMENT  was  procured  in  violation of the [defendant's] APPLICANT'S
 rights under the constitution of this state or of the United States; or
   (e) During the proceedings resulting in the judgment, the  [defendant]
 APPLICANT,  by  reason  of  mental  disease  or defect, was incapable of
 understanding or participating in such proceedings; or
   (f) Improper [and prejudicial] conduct not  appearing  in  the  record
 occurred  during  a trial resulting in the judgment which conduct, if it
 had appeared in the  record,  would  have  [required]  MADE  POSSIBLE  a
 reversal of the judgment upon an appeal therefrom; or
   (g)  New  evidence  has been discovered [since the entry of a judgment
 based upon a verdict of guilty after trial, which could  not  have  been
 produced  by  the  defendant at the trial even with due diligence on his
 part and which] OR BECOME AVAILABLE THAT,  WHEN  VIEWED  ALONE  OR  WITH
 OTHER EVIDENCE, is of such character as to create a REASONABLE probabil-
 ity  that  had  such  evidence  been received at the trial OR DISCOVERED
 PRIOR TO TRIAL OR PLEA AGREEMENT THAT the verdict  OR  PLEA  would  have
 been more favorable to the [defendant; provided that a motion based upon
 such  ground must be made with due diligence after the discovery of such
 alleged new evidence] APPLICANT. TYPES OF NEW  EVIDENCE  SHALL  INCLUDE,
 BUT NOT BE LIMITED TO NEWLY AVAILABLE FORENSIC EVIDENCE OR EVIDENCE THAT
 HAS  EITHER  BEEN  REPUDIATED  BY THE EXPERT WHO ORIGINALLY PROVIDED THE
 OPINION AT A HEARING OR TRIAL OR  THAT  HAS  BEEN  UNDERMINED  BY  LATER
 SCIENTIFIC RESEARCH OR TECHNOLOGICAL ADVANCES; or
   (g-1)  [Forensic  DNA]  IN  CASES  INVOLVING  THE  FORENSIC testing of
 evidence performed since the entry of a judgment, [(1) in the case of  a
 defendant  convicted  after a guilty plea, the court has determined that
 the defendant  has  demonstrated  a  substantial  probability  that  the
 defendant  was  actually  innocent of the offense of which he or she was
 A. 2878--A                          3

 convicted, or (2) in the case of a defendant convicted after  a  trial,]
 the court has determined that there exists a reasonable probability that
 the verdict OR PLEA OFFER would have been more favorable to the [defend-
 ant] APPLICANT, OR THE APPLICANT WOULD HAVE REJECTED THE PLEA OFFER.
   (h)  The judgment was obtained in violation of a right of the [defend-
 ant] APPLICANT under the constitution of this state  or  of  the  United
 States,  INCLUDING, BUT NOT LIMITED TO, A JUDGMENT ENTERED, WHETHER UPON
 TRIAL OR GUILTY PLEA, AGAINST AN APPLICANT WHO IS ACTUALLY INNOCENT.  AN
 APPLICANT IS ACTUALLY INNOCENT WHERE THE APPLICANT PROVES BY  A  PREPON-
 DERANCE OF THE EVIDENCE THAT NO REASONABLE JURY OF THE APPLICANT'S PEERS
 WOULD HAVE FOUND THE APPLICANT GUILTY BEYOND A REASONABLE DOUBT; or
   (i)  The  judgment is a conviction where the [defendant's] APPLICANT'S
 participation in the offense was a result of having been a victim of sex
 trafficking under section 230.34 of the penal law, sex trafficking of  a
 child  under  section 230.34-a of the penal law, labor trafficking under
 section 135.35 of the penal  law,  aggravated  labor  trafficking  under
 section  135.37  of the penal law, compelling prostitution under section
 230.33 of the penal law, or trafficking in persons under the Trafficking
 Victims Protection Act (United  States  Code,  title  22,  chapter  78);
 provided that
   (i)  official documentation of the [defendant's] APPLICANT'S status as
 a victim of sex trafficking, labor trafficking, aggravated  labor  traf-
 ficking,  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] APPLICANT'S participation in
 the  offense  was  a  result of having been a victim of sex trafficking,
 labor trafficking, aggravated labor trafficking, compelling prostitution
 or trafficking in persons, but shall not  be  required  for  granting  a
 motion under this paragraph;
   (ii) a motion under this paragraph, and all pertinent papers and docu-
 ments, shall be confidential and may not be made available to any person
 or  public  or  private [entity] AGENCY except [where] WHEN specifically
 authorized by the court; and
   (iii) when a motion is filed under this paragraph, the court may, upon
 the consent of the petitioner and all of the  INVOLVED  state  [and]  OR
 local  prosecutorial agencies [that prosecuted each matter], consolidate
 into one proceeding a motion to vacate judgments imposed by distinct  or
 multiple criminal courts; or
   (j)  The  judgment is a conviction for [a class A or unclassified] ANY
 misdemeanor entered prior to the effective date of  this  paragraph  and
 satisfies  the  ground  prescribed in paragraph (h) of this subdivision.
 There shall be a rebuttable presumption that a  conviction  by  plea  to
 such  an  offense  was  not knowing, voluntary and intelligent, based on
 ongoing collateral consequences, including  potential  or  actual  immi-
 gration consequences, and there shall be a rebuttable presumption that a
 conviction  by  verdict  constitutes  cruel and unusual punishment under
 section five of article one of the  state  constitution  based  on  such
 consequences; or
   (k)  The  judgment occurred prior to the effective date of the laws of
 two thousand [twenty-one] TWENTY-THREE that amended this  paragraph  and
 is  a  conviction  for an offense as defined in [subparagraphs] SUBPARA-
 GRAPH (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three  of
 section  160.50  of this part, OR A MISDEMEANOR UNDER THE FORMER ARTICLE
 TWO HUNDRED TWENTY-ONE OF THE PENAL LAW, in which case the  court  shall
 presume  that  a  conviction by plea for the aforementioned offenses was
 not knowing, voluntary and intelligent  if  it  has  severe  or  ongoing
 A. 2878--A                          4
 
 consequences,  including  but  not  limited to potential or actual immi-
 gration 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) ANY OFFENSE IN THE STATE OF NEW YORK THAT AN  INTERMEDIATE  APPEL-
 LATE COURT, COURT OF APPEALS, OR UNITED STATES FEDERAL COURT WITH JURIS-
 DICTION  OVER  NEW  YORK STATE LAW ISSUES HAS DEEMED IN VIOLATION OF THE
 CONSTITUTION OF THIS STATE OR OF THE UNITED STATES, OR ANY  OTHER  RIGHT
 UNDER STATE OR FEDERAL LAW.
   2. Notwithstanding the provisions of subdivision one, the court [must]
 MAY deny a motion to vacate a judgment when:
   (a)  The  ground or issue raised upon the motion was previously deter-
 mined on the merits upon an appeal from the judgment, unless  since  the
 time  of  such  appellate  determination  there has been a retroactively
 effective change in the law controlling such issue. HOWEVER, IF  ALL  OF
 THE  EVIDENCE  CURRENTLY BEFORE THE COURT WAS NOT DULY CONSIDERED PREVI-
 OUSLY BY THE COURT, THE COURT SHALL GRANT THE MOTION OR ORDER THE  HEAR-
 ING; or
   (b)  The judgment is, at the time of the motion, appealable or pending
 on appeal, and sufficient facts appear on the record with respect to the
 ground or issue raised upon the motion to permit adequate review thereof
 upon such an appeal unless the issue raised upon such motion is ineffec-
 tive assistance of counsel. This paragraph shall not apply to  a  motion
 under paragraph (i), (J), (K) OR (L) of subdivision one of this section;
 or
   (c) [Although sufficient facts appear on the record of the proceedings
 underlying  the  judgment to have permitted, upon appeal from such judg-
 ment, adequate review of the ground or issue raised upon the motion,  no
 such appellate review or determination occurred owing to the defendant's
 unjustifiable failure to take or perfect an appeal during the prescribed
 period  or  to  his or her unjustifiable failure to raise such ground or
 issue upon an appeal actually perfected by him or her unless  the  issue
 raised upon such motion is ineffective assistance of counsel; or
   (d)]  The ground or issue raised relates solely to the validity of the
 sentence and not to the validity of the conviction. IN  SUCH  CASE,  THE
 COURT SHALL DEEM THE MOTION TO HAVE BEEN MADE PURSUANT TO SECTION 440.20
 OF THIS ARTICLE.
   [3.  Notwithstanding  the provisions of subdivision one, the court may
 deny a motion to vacate a judgment when:
   (a) Although facts in support of the ground or issue raised  upon  the
 motion  could with due diligence by the defendant have readily been made
 to appear on the record in a manner providing adequate basis for  review
 of  such ground or issue upon an appeal from the judgment, the defendant
 unjustifiably failed to adduce such matter prior  to  sentence  and  the
 ground or issue in question was not subsequently determined upon appeal.
 This  paragraph does not apply to a motion based upon deprivation of the
 right to counsel at the trial or upon failure  of  the  trial  court  to
 advise  the  defendant of such right, or to a motion under paragraph (i)
 of subdivision one of this section; or
   (b) The ground or issue raised upon the motion was  previously  deter-
 mined on the merits upon a prior motion or proceeding in a court of this
 state,  other  than  an  appeal  from  the judgment, or upon a motion or
 proceeding in a federal court; unless since the time  of  such  determi-
 nation  there  has  been  a  retroactively  effective  change in the law
 controlling such issue; or
 A. 2878--A                          5

   (c) Upon a previous motion made pursuant to this section, the  defend-
 ant was in a position adequately to raise the ground or issue underlying
 the present motion but did not do so.]
   (D)  Although  the  court may deny the motion under any of the circum-
 stances specified in this subdivision, in the interest  of  justice  and
 for  good cause shown it may in its discretion grant the motion if it is
 otherwise meritorious and vacate the judgment.
   [4.] 3. If the court grants the motion, it must, except as provided in
 subdivision [five] FOUR or [six] FIVE of this section, vacate the  judg-
 ment, and must EITHER:
   (A) dismiss AND SEAL the accusatory instrument, or
   (B) order a new trial, or
   (C) take such other action as is appropriate in the circumstances.
   [5.]  4.  Upon  granting  the motion upon the ground, as prescribed in
 paragraph (g) of subdivision one, that newly discovered evidence creates
 a probability that had such evidence been  received  at  the  trial  the
 verdict  would  have been more favorable to the [defendant] APPLICANT in
 that the conviction would have been for a lesser offense  than  the  one
 contained in the verdict, the court may either:
   (a) Vacate the judgment and order a new trial; or
   (b) With the consent of the people, modify the judgment by reducing it
 to  one  of  conviction for such lesser offense. In such case, the court
 must re-sentence the [defendant] APPLICANT accordingly.
   [6.] 5. If the court grants a motion under [paragraph  (i)  or]  para-
 graph  [(k)]  (H),  (I),  (J),  (K)  OR  (L)  of subdivision one of this
 section, it must vacate the judgment [and] ON THE  MERITS,  dismiss  the
 accusatory  instrument,  SEAL THE JUDGMENT, and may take such additional
 action as is appropriate in the circumstances. [In the case of a  motion
 granted  under  paragraph  (i)  of  subdivision one of this section, the
 court must vacate the judgment on the  merits  because  the  defendant's
 participation  in  the  offense  was a result of having been a victim of
 trafficking.
   7.] 6. Upon a new trial resulting from an order  vacating  a  judgment
 pursuant  to  this  section, the indictment is deemed to contain all the
 counts and to charge all the offenses which it contained and charged  at
 the  time  the  previous  trial was commenced, regardless of whether any
 count was dismissed by the court in the course of such trial, except (a)
 those upon or of which the [defendant] APPLICANT was acquitted or deemed
 to have been acquitted, and (b) those dismissed by  the  order  vacating
 the  judgment,  and (c) those previously dismissed by an appellate court
 upon an appeal from the judgment, or by any court upon a previous  post-
 judgment motion.
   [8.]  7.  Upon  an order which vacates a judgment based upon a plea of
 guilty to an accusatory instrument or a part thereof, but which does not
 dismiss the entire accusatory instrument, the criminal action is, in the
 absence of an  express  direction  to  the  contrary,  restored  to  its
 [prepleading]  PRE-PLEADING  status  and  the  accusatory  instrument is
 deemed to contain all the counts and to charge all the offenses which it
 contained and charged at the time of the entry of the plea, except those
 subsequently dismissed under circumstances specified in  paragraphs  (b)
 and  (c)  of subdivision six.   Where the plea of guilty was entered and
 accepted, pursuant to subdivision three  of  section  220.30,  upon  the
 condition  that  it  constituted  a complete disposition not only of the
 accusatory instrument underlying the judgment vacated but also of one or
 more other accusatory instruments against the [defendant] APPLICANT then
 pending in the same court, the order  of  vacation  completely  restores
 A. 2878--A                          6
 
 such other accusatory instruments; and such is the case even though such
 order dismisses the main accusatory instrument underlying the judgment.
   [9.]  8. Upon granting of a motion pursuant to paragraph (j) of subdi-
 vision one of this section, the court may either:
   (a) With the consent of the people, vacate the judgment or modify  the
 judgment by reducing it to one of conviction for a lesser offense; or
   (b)  Vacate the judgment and order a new trial wherein the [defendant]
 APPLICANT enters a plea to the same offense in order to permit the court
 to resentence the [defendant] APPLICANT in accordance with the amendato-
 ry provisions of subdivision one-a of section 70.15 of the penal law.
   § 3. Section 440.20 of the criminal procedure law,  subdivision  1  as
 amended by chapter 1 of the laws of 1995, is amended to read as follows:
 § 440.20 Motion to set aside sentence; by [defendant] APPLICANT.
   1.  At  any time after the entry of a judgment, the court in which the
 judgment was entered may, upon motion of the [defendant] APPLICANT,  set
 aside  the  sentence upon the ground that it was unauthorized, illegally
 imposed, EXCEEDED THE MAXIMUM ALLOWED BY LAW,  OBTAINED  OR  IMPOSED  IN
 VIOLATION  OF  THE  DEFENDANT'S  CONSTITUTIONAL RIGHTS, or WAS otherwise
 invalid as a matter of law.  Where the judgment includes a  sentence  of
 death, the court may also set aside the sentence upon any of the grounds
 set  forth  in paragraph (b), (c), (f), (g) or (h) of subdivision one of
 section 440.10 as applied to  a  separate  sentencing  proceeding  under
 section  400.27,  provided,  however,  that  to the extent the ground or
 grounds asserted include one or more  of  the  aforesaid  paragraphs  of
 subdivision  one  of section 440.10, the court must also apply [subdivi-
 sions] SUBDIVISION two [and three] of section 440.10, other  than  para-
 graph  [(d)]  (C) of [subdivision two of] such [section] SUBDIVISION, in
 determining the motion. In the event the court enters an order  granting
 a  motion to set aside a sentence of death under this section, the court
 must either direct  a  new  sentencing  proceeding  in  accordance  with
 section  400.27  or,  to  the extent that the defendant cannot be resen-
 tenced to death consistent with the laws of this state or the  constitu-
 tion  of this state or of the United States, resentence the defendant to
 life imprisonment without parole or to a sentence  of  imprisonment  for
 the class A-I felony of murder in the first degree other than a sentence
 of  life  imprisonment without parole. Upon granting the motion upon any
 of the grounds set forth in the aforesaid paragraphs of subdivision  one
 of  section 440.10 and setting aside the sentence, the court must afford
 the people a reasonable period of time, which shall not be less than ten
 days, to determine whether to take an  appeal  from  the  order  setting
 aside the sentence of death. The taking of an appeal by the people stays
 the  effectiveness  of  that portion of the court's order that directs a
 new sentencing proceeding.
   2.   Notwithstanding the provisions  of  subdivision  one,  the  court
 [must]  MAY deny such a motion when the ground or issue raised thereupon
 was previously determined on the merits upon an appeal from the judgment
 or sentence, unless since the time of such appellate determination there
 has been a retroactively effective change in the  law  controlling  such
 issue.    HOWEVER, IF ALL OF THE EVIDENCE CURRENTLY BEFORE THE COURT WAS
 NOT DULY CONSIDERED PREVIOUSLY BY THE COURT, THE COURT  SHALL  NOT  DENY
 THE  MOTION  TO  VACATE  AND  INSTEAD SHALL ORDER A HEARING OR GRANT THE
 MOTION. EVEN IF THE COURT HAS ALREADY CONSIDERED  ALL  OF  THE  EVIDENCE
 CURRENTLY BEFORE THE COURT, THE COURT IN THE INTEREST OF JUSTICE AND FOR
 GOOD CAUSE SHOWN MAY GRANT THE MOTION IF IT IS OTHERWISE MERITORIOUS.
   3.   [Notwithstanding the provisions of subdivision one, the court may
 deny such a motion when the ground or issue raised thereupon was  previ-
 A. 2878--A                          7

 ously  determined  on  the merits upon a prior motion or proceeding in a
 court of this state, other than an appeal from the judgment, or  upon  a
 prior  motion or proceeding in a federal court, unless since the time of
 such  determination  there  has been a retroactively effective change in
 the law controlling such issue.   Despite such  determination,  however,
 the  court  in  the interest of justice and for good cause shown, may in
 its discretion grant the motion if it is otherwise meritorious.
   4.]  An order setting aside a sentence pursuant to this  section  does
 not  affect  the  validity  or  status of the underlying conviction, and
 after entering such an order the court must resentence  the  [defendant]
 APPLICANT in accordance with the law.
   §  4. Section 440.30 of the criminal procedure law, subdivisions 1 and
 1-a as amended by chapter 19 of the laws of 2012 and the  opening  para-
 graph of paragraph (b) of subdivision 1 as amended by section 10 of part
 LLL of chapter 59 of the laws of 2019, is amended to read as follows:
 § 440.30 Motion to vacate judgment and to set aside sentence; procedure.
   1.  [(a)  A]  AN APPLICATION FOR ASSIGNMENT OF COUNSEL FOR A motion to
 vacate a judgment pursuant to section 440.10 OR 440.11 of  this  article
 and  a motion to set aside a sentence pursuant to section 440.20 of this
 article must be made in writing BY A PRO SE APPLICANT TO  THE  JUDGE  OR
 JUSTICE  WHO IMPOSED THE ORIGINAL SENTENCE and upon reasonable notice to
 the people. [Upon the motion, a defendant]
   (A) THE COURT SHALL ASSIGN DEFENSE COUNSEL IN CASES WHERE THERE  IS  A
 COLORABLE  CLAIM OF RELIEF ACCORDING TO THIS ARTICLE, IN ACCORDANCE WITH
 SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW. FOR THE  PURPOSE  OF
 THIS  SECTION,  A  COLORABLE  CLAIM  IS  A  CLAIM THAT, TAKING THE FACTS
 ALLEGED IN THE APPLICATION AS TRUE AND VIEWED IN A LIGHT MOST  FAVORABLE
 TO THE APPLICANT, WOULD ENTITLE THE APPLICANT TO RELIEF.
   (B)  IF  THE JUDGE DECIDES NOT TO ASSIGN COUNSEL, THEY SHALL STATE THE
 REASONS FOR DENYING THE REQUEST FOR ASSIGNMENT OF COUNSEL IN WRITING.
   (C) IF, AT THE TIME OF SUCH  APPLICANT'S  REQUEST  FOR  ASSIGNMENT  OF
 COUNSEL, THE ORIGINAL SENTENCING JUDGE OR JUSTICE NO LONGER WORKS IN THE
 COURT IN WHICH THE ORIGINAL SENTENCE WAS IMPOSED, THEN THE REQUEST SHALL
 BE  RANDOMLY  ASSIGNED TO ANOTHER JUDGE OR JUSTICE OF THE COURT IN WHICH
 THE ORIGINAL SENTENCE WAS IMPOSED.
   (D) APPLICANTS ALREADY REPRESENTED BY COUNSEL, EITHER APPOINTED PURSU-
 ANT TO SECTION SEVEN HUNDRED TWENTY-TWO OF THE COUNTY LAW  OR  OTHERWISE
 RETAINED,  ARE  NOT  REQUIRED  TO  FILE AN APPLICATION FOR ASSIGNMENT OF
 COUNSEL.
   2. UPON THE REQUEST OF THE APPLICANT OR HIS OR  HER  DEFENSE  COUNSEL,
 THE COURT SHALL ORDER:
   (A)  THE  PEOPLE  TO  MAKE  AVAILABLE  A COPY OF ITS FILE OF THE CASE,
 INCLUDING ANY PHYSICAL EVIDENCE IN THE  PEOPLE'S  POSSESSION  AND  GRAND
 JURY MINUTES;
   (B)  THE APPLICANT'S PRIOR TRIAL AND APPELLATE DEFENSE COUNSEL TO MAKE
 AVAILABLE THEIR COMPLETE FILES RELATING TO THE CASE;
   (C) COURT CLERKS AND PROBATION DEPARTMENTS TO MAKE AVAILABLE THE COURT
 FILES OR PROBATION RECORDS RELATING TO THE CASE; AND
   (D) ANY LAW ENFORCEMENT AGENCY INVOLVED WITH THE CASE TO TURN OVER ITS
 FILES  OF  THE  CASE,  INCLUDING  POLICE  REPORTS,  WITNESS  STATEMENTS,
 EVIDENCE  VOUCHERS,  OR  ANY  OTHER  RELEVANT RECORDS OR EVIDENCE AT ITS
 DISPOSAL.
   (E) THE COURT SHALL FURTHER ENSURE THAT ANY DISCLOSURE OF EVIDENCE  OR
 PROPERTY  ORDERED  PURSUANT  TO  THIS  SUBDIVISION  MAY  BE SUBJECT TO A
 PROTECTIVE ORDER AS DEFINED IN SECTION 245.70 OF THIS PART, WHERE APPRO-
 PRIATE.
 A. 2878--A                          8
 
   (F) NOTHING IN THIS SECTION SHALL PRECLUDE THE COURT  FROM  CONDUCTING
 AN  IN  CAMERA  INSPECTION  OF  EVIDENCE  AND ISSUING A PROTECTIVE ORDER
 PURSUANT TO SECTION 245.70 OF THIS PART AT THE  REQUEST  OF  THE  PROSE-
 CUTION OR DEFENSE.
   3. (A) AN APPLICANT who is in a position adequately to raise more than
 one  ground  should raise every such ground upon which he or she intends
 to challenge the judgment or sentence. If the motion is based  upon  the
 existence  or  occurrence of facts, the motion papers [must] MAY contain
 sworn allegations thereof, whether by the [defendant]  APPLICANT  or  by
 another  person  or  persons.  Such  sworn allegations may be based upon
 personal knowledge of  the  affiant  or  upon  information  and  belief,
 provided  that in the latter event the affiant must state the sources of
 such information and the grounds of such belief. The [defendant]  APPLI-
 CANT  may  further submit documentary evidence or information supporting
 or tending to support the allegations of the moving papers.
   (B) The people may file with the court, and in such case must serve  a
 copy  thereof  upon  the [defendant] APPLICANT or his or her counsel, if
 any, an answer denying or admitting any or all of the allegations of the
 motion papers, and may further submit documentary evidence  or  informa-
 tion refuting or tending to refute such allegations.
   (C)  After  all  papers of both parties have been filed, and after all
 documentary evidence or information, if any,  has  been  submitted,  the
 court must consider the same for the purpose of ascertaining whether the
 motion is determinable without a hearing to resolve questions of fact.
   [(b)  In  conjunction  with the filing or consideration of a motion to
 vacate a judgment pursuant to  section  440.10  of  this  article  by  a
 defendant  convicted after a trial, in cases where the court has ordered
 an evidentiary hearing upon such motion, the court may  order  that  the
 people  produce  or  make  available  for  inspection  property  in  its
 possession, custody, or control that was secured in connection with  the
 investigation  or prosecution of the defendant upon credible allegations
 by the defendant and a finding by  the  court  that  such  property,  if
 obtained,  would be probative to the determination of defendant's actual
 innocence, and that the request is reasonable. The court shall  deny  or
 limit  such  a  request  upon a finding that such a request, if granted,
 would threaten the integrity or chain of  custody  of  property  or  the
 integrity  of  the processes or functions of a laboratory conducting DNA
 testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
 other  substantially  negative consequences to any person, undermine the
 proper functions of law enforcement  including  the  confidentiality  of
 informants,  or on the basis of any other factor identified by the court
 in the interests of justice or public safety. The  court  shall  further
 ensure  that any property produced pursuant to this paragraph is subject
 to a protective order, where  appropriate.  The  court  shall  deny  any
 request made pursuant to this paragraph where:
   (i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
 article does not seek to demonstrate his or her actual innocence of  the
 offense  or  offenses  of  which  he  or  she was convicted that are the
 subject of the motion, or (2) the defendant has not  presented  credible
 allegations and the court has not found that such property, if obtained,
 would  be probative to the determination of the defendant's actual inno-
 cence and that the request is reasonable;
   (ii) the defendant has made his or her motion after  five  years  from
 the  date  of  the  judgment of conviction; provided, however, that this
 limitation period shall be tolled for five years if the defendant is  in
 custody  in connection with the conviction that is the subject of his or
 A. 2878--A                          9

 her motion, and provided further that, notwithstanding  such  limitation
 periods,  the  court may consider the motion if the defendant has shown:
 (A) that he or she has been pursuing his or her  rights  diligently  and
 that  some extraordinary circumstance prevented the timely filing of the
 motion; (B) that the facts upon which  the  motion  is  predicated  were
 unknown  to the defendant or his or her attorney and could not have been
 ascertained by the exercise of due diligence prior to the expiration  of
 the  statute of limitations; or (C) considering all circumstances of the
 case including but not limited to evidence of the defendant's guilt, the
 impact of granting or denying such motion upon public confidence in  the
 criminal justice system, or upon the safety or welfare of the community,
 and the defendant's diligence in seeking to obtain the requested proper-
 ty  or  related  relief,  the  interests  of  justice would be served by
 considering the motion;
   (iii) the defendant is challenging a judgment convicting him or her of
 an offense that is not a felony defined in section 10.00  of  the  penal
 law; or
   (iv)  upon  a finding by the court that the property requested in this
 motion would be available through other means through reasonable efforts
 by the defendant to obtain such property.
   1-a.] 4. (a) [(1)] Where the [defendant's] APPLICANT'S motion requests
 the performance of a forensic DNA test on specified evidence,  and  upon
 the  court's determination that any evidence containing deoxyribonucleic
 acid ("DNA") was secured in  connection  with  the  trial  OR  THE  PLEA
 resulting  in  the  judgment,  the court shall grant the application for
 forensic DNA testing of such evidence upon its determination that [if a]
 HAD THE DNA test [had] RESULTS been [conducted on such evidence, and  if
 the  results  had been admitted in the trial resulting in the judgment,]
 AVAILABLE AT THE TIME OF TRIAL OR PLEA, there [exists] IS  a  reasonable
 probability  that  the  verdict  would  have  been more favorable to the
 [defendant] APPLICANT.
   [(2) Where the defendant's motion for forensic DNA testing  of  speci-
 fied  evidence  is made following a plea of guilty and entry of judgment
 thereon convicting him or her of: (A)  a  homicide  offense  defined  in
 article one hundred twenty-five of the penal law, any felony sex offense
 defined in article one hundred thirty of the penal law, a violent felony
 offense  as defined in paragraph (a) of subdivision one of section 70.02
 of the penal law, or (B) any other felony offense to  which  he  or  she
 pled guilty after being charged in an indictment or information in supe-
 rior court with one or more of the offenses listed in clause (A) of this
 subparagraph, then the court shall grant such a motion upon its determi-
 nation  that  evidence containing DNA was secured in connection with the
 investigation or prosecution of the defendant, and if  a  DNA  test  had
 been  conducted  on  such evidence and the results had been known to the
 parties prior to the entry of the defendant's plea and judgment thereon,
 there exists a substantial probability  that  the  evidence  would  have
 established  the defendant's actual innocence of the offense or offenses
 that are the subject of the defendant's motion; provided, however, that:
   (i) the court shall consider whether the defendant had the opportunity
 to request such testing prior to entering a guilty plea, and,  where  it
 finds  that  the defendant had such opportunity and unjustifiably failed
 to do so, the court may deny such motion; and
   (ii) a court shall deny the defendant's motion for forensic DNA  test-
 ing  where the defendant has made his or her motion more than five years
 after entry of the judgment of conviction; except  that  the  limitation
 period  may be tolled if the defendant has shown: (A) that he or she has
 A. 2878--A                         10

 been pursuing his or her rights diligently and that  some  extraordinary
 circumstance  prevented the timely filing of the motion for forensic DNA
 testing; (B) that the facts upon which the  motion  is  predicated  were
 unknown  to the defendant or his or her attorney and could not have been
 ascertained by the exercise of due diligence prior to the expiration  of
 this statute of limitations; or (C) considering all circumstances of the
 case including but not limited to evidence of the defendant's guilt, the
 impact  of granting or denying such motion upon public confidence in the
 criminal justice system, or upon the safety or welfare of the community,
 and the defendant's diligence in seeking to obtain the requested proper-
 ty or related relief, the interests of justice would be served by  toll-
 ing such limitation period.]
   (b)  WHERE  THE APPLICANT'S MOTION FOR RELIEF REQUESTS THE PERFORMANCE
 OF ANY OTHER TESTING OF  FORENSIC  EVIDENCE  OR  ANY  PHYSICAL  EVIDENCE
 SECURED  IN  THE CASE, THE COURT SHALL GRANT THE APPLICATION FOR TESTING
 OF SUCH EVIDENCE, UPON ITS DETERMINATION THAT HAD THE RESULTS OF TESTING
 OF FORENSIC OR OTHER PHYSICAL EVIDENCE BEEN AVAILABLE  AT  THE  TIME  OF
 TRIAL  OR PLEA, THERE IS A REASONABLE PROBABILITY THAT THE VERDICT WOULD
 HAVE BEEN MORE FAVORABLE TO THE APPLICANT.
   (C) (I) In conjunction with the filing of a motion under this subdivi-
 sion, the court may direct the people to provide the [defendant]  APPLI-
 CANT  AND  HIS  OR HER COUNSEL with information in the possession of the
 people  concerning  the  current  physical  location  of  the  specified
 evidence  and if the specified evidence no longer exists or the physical
 location of the specified evidence is unknown, a representation to  that
 effect and information and documentary evidence in the possession of the
 people  concerning  the  last  known physical location of such specified
 evidence.
   (II) If there is a finding by the court that the specified evidence no
 longer exists or the physical location of  such  specified  evidence  is
 unknown,  [such  information in and of itself shall not be a factor from
 which any inference unfavorable to the people may be drawn by the  court
 in  deciding a motion under this section] THE COURT MAY GRANT THE APPLI-
 CANT'S MOTION AND VACATE THE JUDGMENT UPON A FINDING BY THE  COURT  THAT
 SUCH EVIDENCE IS UNAVAILABLE DUE TO MALFEASANCE OR NEGLECT.
   (III)  The  court,  on  motion  of the [defendant] APPLICANT, may also
 issue a subpoena duces tecum directing a  public  or  private  hospital,
 laboratory  or  other  entity  to produce such specified evidence in its
 possession and/or information and documentary evidence in its possession
 concerning the location and status of such specified evidence.
   [(c)] (D) In response to a motion under this paragraph, upon notice to
 the parties and to the entity required to perform the search  the  court
 may  order  an  entity  that has access to the combined DNA index system
 ("CODIS") or its successor system to compare a DNA profile obtained from
 probative biological material gathered in connection with  the  investi-
 gation or prosecution of the [defendant] APPLICANT against DNA databanks
 by  keyboard searches, or a similar method that does not involve upload-
 ing, upon a court's determination that (1) such  profile  complies  with
 federal  bureau  of  investigation  or state requirements, whichever are
 applicable and as such requirements are applied to law enforcement agen-
 cies seeking such a comparison, and that the data meet state  DNA  index
 system  and/or  national  DNA index system criteria as such criteria are
 applied to law enforcement agencies seeking such a comparison and (2) if
 such comparison had been conducted, [and if the results had been  admit-
 ted  in  the  trial resulting in the judgment,] a reasonable probability
 exists that the verdict would have been more favorable to  the  [defend-
 A. 2878--A                         11

 ant,  or  in  a case involving a plea of guilty, if the results had been
 available to the defendant prior to the plea, a  reasonable  probability
 exists  that  the  conviction  would not have resulted] APPLICANT.   For
 purposes of this subdivision, a "keyboard search" shall mean a search of
 a DNA profile against the databank in which the profile that is searched
 is not uploaded to or maintained in the databank.
   [2.  If  it  appears  by conceded or uncontradicted allegations of the
 moving papers or of the answer, or by unquestionable documentary  proof,
 that  there  are  circumstances which require denial thereof pursuant to
 subdivision two of section 440.10 or subdivision two of section  440.20,
 the  court  must summarily deny the motion. If it appears that there are
 circumstances authorizing, though not requiring, denial thereof pursuant
 to subdivision three of section 440.10 or subdivision three  of  section
 440.20,  the  court  may in its discretion either (a) summarily deny the
 motion, or (b) proceed to consider the merits thereof.]
   [3.] 5. Upon considering the merits of  the  motion,  the  court  must
 grant  it  without  conducting  a hearing and vacate the judgment or set
 aside the sentence, as the case may be, if:
   (a) The moving papers allege a ground constituting legal basis for the
 motion; and
   (b) Such ground, if based upon the existence or occurrence  of  facts,
 is supported by sworn allegations thereof; and
   (c)  The sworn allegations of fact essential to support the motion are
 either conceded by the people to be true or are conclusively  substanti-
 ated by unquestionable documentary proof.
   [4.]  6. Upon considering the merits of the motion, the court may deny
 it without conducting a hearing if:
   (a) The moving papers do not  allege  any  ground  constituting  legal
 basis for the motion; or
   (b) [The motion is based upon the existence or occurrence of facts and
 the  moving  papers  do  not contain sworn allegations substantiating or
 tending to substantiate all the essential facts, as required by subdivi-
 sion one; or
   (c)] An allegation of fact essential to support the motion is  conclu-
 sively refuted by unquestionable documentary proof; or
   [(d)] (C) An allegation of fact essential to support the motion (i) is
 contradicted  by  a court record or other official document[, or is made
 solely by the defendant and is unsupported by  any  other  affidavit  or
 evidence,]  and (ii) under these and all the other circumstances attend-
 ing the case, there is no reasonable possibility that such allegation is
 true.
   [5.] 7. If the court does not determine the motion pursuant to [subdi-
 visions two, three or four] SUBDIVISION FIVE OR SIX, it must  conduct  a
 hearing  and make findings of fact essential to the determination there-
 of. The [defendant] APPLICANT has a right to be present at such  hearing
 but  may  waive such right in writing. If he OR SHE does not so waive it
 and if he OR SHE is confined in a prison or other  institution  of  this
 state, the court must cause him OR HER to be produced at such hearing.
   [6.] 8. At such a hearing, the [defendant] APPLICANT has the burden of
 proving  by  a  preponderance  of  the  evidence every fact essential to
 support the motion. AT THE HEARING, EITHER PARTY SHALL RECEIVE  A  DAILY
 COPY OF THE HEARING MINUTES, UPON REQUEST.
   [7.]  9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, WHEN THE
 APPLICANT RAISES A COLORABLE CLAIM OF RELIEF PURSUANT TO  THIS  ARTICLE,
 THE  COURT  SHALL  NOT  SUMMARILY DENY THE MOTION ON THE GROUND THAT THE
 APPLICANT PREVIOUSLY MOVED FOR RELIEF UNDER THIS ARTICLE.
 A. 2878--A                         12
 
   10. Regardless of whether a hearing was  conducted,  the  court,  upon
 determining  the  motion,  must  set forth on the record its findings of
 fact, its conclusions of law and the reasons for its determination.
   § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as
 amended  by chapter 671 of the laws of 1971 and as renumbered by chapter
 516 of the laws of 1986, is amended to read as follows:
   4. An order, entered pursuant to  [section  440.40,  setting  aside  a
 sentence  other  than  one  of death, upon motion of the People] ARTICLE
 FOUR HUNDRED FORTY OF THIS TITLE, SHALL BE AUTHORIZED TO AN INTERMEDIATE
 APPELLATE COURT AS A MATTER OF RIGHT.
   § 6. Subdivision 5 of section 450.10 of the criminal procedure law  is
 REPEALED.
   §  7.  Section  216  of  the  judiciary law is amended by adding a new
 subdivision 7 to read as follows:
   7. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL COLLECT DATA AND REPORT
 EVERY YEAR IN RELATION TO APPLICATIONS AND  MOTIONS  FILED  PURSUANT  TO
 ARTICLE FOUR HUNDRED FORTY OF THE CRIMINAL PROCEDURE LAW, BROKEN DOWN BY
 EACH  SECTION  OF  SUCH  ARTICLE  TO  INCLUDE  MOTIONS FILED PURSUANT TO
 SECTIONS 440.10, 440.20, 440.40, 440.46, 440.46-A,  AND  440.47  OF  THE
 CRIMINAL  PROCEDURE LAW. INFORMATION TO BE COLLECTED AND DISCLOSED SHALL
 INCLUDE THE RAW NUMBER OF BOTH APPLICATIONS AND/OR MOTIONS FILED IN EACH
 COUNTY AND ON APPEAL IN  EACH  JUDICIAL  DEPARTMENT.  INFORMATION  SHALL
 INCLUDE  THE  TOP CONVICTION CHARGE FOR EACH APPLICATION OR MOTION; WHEN
 PRO SE APPLICANTS REQUEST ASSIGNMENT OF COUNSEL PURSUANT TO  SUBDIVISION
 TWO  OF  SECTION  440.30  OF  THE CRIMINAL PROCEDURE LAW, WHETHER OR NOT
 COUNSEL WAS ASSIGNED; THE OUTCOME OF EACH MOTION FILED,  WHETHER  DENIED
 WITHOUT HEARING, DENIED WITH HEARING, VACATUR GRANTED, OR OTHER; AND THE
 AVERAGE  LENGTH  OF  TIME MOTION UNDER ARTICLE FOUR HUNDRED FORTY OF THE
 CRIMINAL PROCEDURE LAW REMAINS PENDING  FOR  EACH  COUNTY.  SUCH  REPORT
 SHALL  AGGREGATE  THE  DATA COLLECTED BY COUNTY AND JUDICIAL DEPARTMENT.
 THE DATA SHALL BE AGGREGATED IN ORDER TO PROTECT THE IDENTITY  OF  INDI-
 VIDUAL  APPLICANTS.  THE REPORT SHALL BE RELEASED PUBLICLY AND PUBLISHED
 ON THE WEBSITES OF THE OFFICE OF COURT ADMINISTRATION AND  THE  DIVISION
 OF CRIMINAL JUSTICE SERVICES. THE FIRST REPORT SHALL BE PUBLISHED TWELVE
 MONTHS AFTER THIS SUBDIVISION SHALL HAVE BECOME A LAW, AND SHALL INCLUDE
 DATA  FROM  THE  FIRST  SIX  MONTHS FOLLOWING THE EFFECTIVE DATE OF THIS
 SUBDIVISION. REPORTS FOR SUBSEQUENT PERIODS SHALL BE PUBLISHED  ANNUALLY
 THEREAFTER.
   § 8. Severability. If any provision of this act, or any application of
 any  provision of this act, is held to be invalid, that shall not affect
 the validity or effectiveness of any other provision of this act, or  of
 any  other  application of any provision of this act, which can be given
 effect without that provision or  application;  and  to  that  end,  the
 provisions and applications of this act are severable.
   §  9.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.