S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5824
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2023
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the court of claims  act,  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. 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-
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09234-02-3
              

 S. 5824                             2
 
 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  [has been pardoned upon the ground of innocence of the
 crime or crimes for which he was sentenced and which are the grounds for
 the complaint; or (ii)  his  judgment  of  conviction  was  reversed  or
 vacated,  and the accusatory instrument dismissed or, if a new trial was
 ordered, either he was found not guilty at the new trial or he  was  not
 retried  and  the  accusatory  instrument  dismissed;  provided that the
 judgement 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 imprisonment complained of) or  five  of  section
 470.20  of  the  criminal procedure 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] OR SHE HAS HAD ONE OR MORE  FELONIES  AND  MISDEMEANORS  DISMISSED
 WITH PREJUDICE FOLLOWING SERVING ALL OR PART OF THE SENTENCE; 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 CONVICTION or his OR HER acts or omissions charged in
 the accusatory instrument OR CONVICTION 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  [has been pardoned upon the ground of innocence of the
 crime or crimes for which he was sentenced and which are the grounds for
 the complaint; or (ii)  his  judgment  of  conviction  was  reversed  or
 vacated,  and the accusatory instrument dismissed or, if a new trial was
 ordered, either he was found not guilty at the new trial or he  was  not
 retried  and  the  accusatory  instrument  dismissed;  provided that the
 judgement 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
 S. 5824                             3

 the sole basis for the imprisonment complained of) or  five  of  section
 470.20  of  the  criminal procedure 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] OR SHE HAS HAD ONE OR MORE  FELONIES  AND  MISDEMEANORS  DISMISSED
 WITH PREJUDICE FOLLOWING SERVING ALL OR PART OF THE SENTENCE; and
   (c) he OR SHE did not commit any of the acts charged in the accusatory
 instrument  OR CONVICTION or his OR HER acts or omissions charged in the
 accusatory instrument OR CONVICTION  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.
   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 OR CONVICTION that occurred before
 the  effective  date  of this section shall file his OR HER claim within
 [two] FIVE years after the 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 instrument OR CONVICTION that occurred on or after the
 effective date of this section shall file his OR HER claim within  [two]
 FIVE years after the pardon or dismissal.
   § 2. This act shall take effect immediately.