A. 7422 2
JUDICIAL AUTHORITY TO HAVE BEEN LEGALLY INSUFFICIENT, AS OF THE DATE OF
THE COMMISSION OF THE CRIME, TO HAVE SATISFIED THE ELEMENTS OF THE CRIME
FOR WHICH THE APPLICANT WAS CONVICTED, BUT WERE LEGALLY SUFFICIENT TO
SUPPORT CONVICTION FOR A LESSER DEGREE OFFENSE ON THE DATE OF SUCH
COMMISSION.
2. UPON GRANTING RELIEF PURSUANT TO PARAGRAPH (A) OF SUBDIVISION ONE
OF THIS SECTION, THE COURT SHALL VACATE THE JUDGMENT OF CONVICTION ON
THE MERITS, DISMISS THE ACCUSATORY INSTRUMENT AND MAY TAKE SUCH ADDI-
TIONAL ACTION AS IS APPROPRIATE IN THE CIRCUMSTANCES. UPON GRANTING
RELIEF PURSUANT TO PARAGRAPH (B) OR (C) OF SUBDIVISION ONE OF THIS
SECTION, THE COURT SHALL MODIFY THE JUDGMENT TO ONE OF CONVICTION FOR
THE APPROPRIATE LESSER OFFENSE AND RE-SENTENCE THE APPLICANT ACCORDING-
LY.
§ 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, the court in which it
was entered may, upon motion of the [defendant] 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] ON
behalf of a court or a prosecutor; or
(c) Material evidence adduced at a trial resulting in the judgment OF
CONVICTION was false and was, prior to the entry of the judgment, known
by the prosecutor or by the court to be false; or
(d) Material evidence adduced by the people at a trial resulting in
the judgment 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) (I) New evidence has been discovered [since the entry of a judg-
ment 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 is of such character as to create a probability that
had such evidence been received at the trial the verdict 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]; or
[(g-1) Forensic DNA] (II) NEW EVIDENCE HAS BEEN DISCOVERED SINCE THE
ENTRY OF A JUDGMENT BASED UPON A GUILTY PLEA, WHICH COULD NOT HAVE BEEN
A. 7422 3
PRODUCED BY THE APPLICANT PRIOR TO THE ENTRY OF THE GUILTY PLEA EVEN
WITH DUE DILIGENCE ON THEIR PART AND WHICH IS OF SUCH A CHARACTER AS TO
CREATE A REASONABLE PROBABILITY THAT THE APPLICANT WAS ACTUALLY INNOCENT
OF THE OFFENSE AND THE UNDERLYING CONDUCT FOR WHICH THEY WERE CONVICTED.
(III) 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 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 would have
been more favorable to the defendant.]: (A) IN THE CASE OF AN APPLICANT
CONVICTED AFTER A GUILTY PLEA, THAT THE DEFENDANT IS ACTUALLY INNOCENT;
OR (B) IN THE CASE OF AN APPLICANT CONVICTED AFTER TRIAL, THAT THE
VERDICT WOULD HAVE BEEN MORE FAVORABLE TO THE APPLICANT; OR
(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; 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
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(k) The judgment occurred prior to the effective date of the laws of
two thousand [twenty-one] TWENTY-FIVE that amended this paragraph and is
a conviction for an offense as defined in [subparagraphs] SUBPARAGRAPH
(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
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) THE OFFENSE FOR WHICH THE APPLICANT WAS CONVICTED HAS BEEN HELD TO
BE UNCONSTITUTIONAL UNDER THE FEDERAL OR STATE CONSTITUTION BY THE COURT
OF APPEALS, AN INTERMEDIATE APPELLATE COURT OR A U.S. COURT WITH JURIS-
DICTION OVER NEW YORK.
2. Notwithstanding the provisions of subdivision one, the court [must]
SHALL 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; OR THE APPLICANT HAS
SUBMITTED NEW EVIDENCE THAT COULD NOT HAVE BEEN PREVIOUSLY PRODUCED WITH
THE EXERCISE OF DUE DILIGENCE THAT MATERIALLY ADVANCES THE CLAIM; 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 (H), (i), (J) OR (K) 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] APPLICANT have readi-
ly 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 judg-
ment, the [defendant] APPLICANT 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] APPLICANT of
A. 7422 5
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 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 determination there has been a retroactively
effective change in the law controlling such issue OR THE APPLICANT HAS
SUBMITTED NEW EVIDENCE THAT COULD NOT HAVE BEEN PREVIOUSLY PRODUCED WITH
THE EXERCISE OF DUE DILIGENCE THAT MATERIALLY ADVANCES THE CLAIM; or
(c) Upon a previous motion made pursuant to this section, the [defend-
ant] APPLICANT was in a position adequately to raise the ground or issue
underlying the present motion but did not do so.
Although the court may deny the motion under any of the circumstances
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. FOR PURPOSES OF PARAGRAPHS (G) AND (H) OF SUBDIVISION ONE OF THIS
SECTION, AN APPLICANT IS ACTUALLY INNOCENT, WHERE THEY PROVE THAT THEY
DID NOT COMMIT THE CRIME FOR WHICH THEY WERE CONVICTED OR THAT THE CRIME
OF CONVICTION DID NOT OCCUR. IF THE COURT CONCLUDES THAT THERE IS A
REASONABLE PROBABILITY THAT THE APPLICANT IS ACTUALLY INNOCENT, THE
COURT SHALL VACATE THE CONVICTION OR CONVICTIONS AND ORDER A NEW TRIAL.
IF THE COURT CONCLUDES BY CLEAR AND CONVINCING EVIDENCE THAT THE APPLI-
CANT IS ACTUALLY INNOCENT OF THE CRIME, THE COURT SHALL VACATE THE
CONVICTION OR CONVICTIONS AND DISMISS WITH PREJUDICE.
5. If the court grants the motion, it must, except as provided in
subdivision [five] SIX or [six] SEVEN 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.] 6. Upon granting the motion upon the ground, as prescribed in
paragraph (g) of subdivision one OF THIS SECTION, 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.] 7. If the court grants a motion under paragraph [(i) or paragraph
(k)] (G) OR (H), WHEN THE BASIS FOR RELIEF IS ACTUAL INNOCENCE AS ESTAB-
LISHED BY CLEAR AND CONVINCING EVIDENCE, (I), (J) OR (K) of subdivision
one of this section, it must vacate the judgment [and] ON THE MERITS,
dismiss the accusatory instrument, 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] APPLICANT'S
participation in the offense was a result of having been a victim of
trafficking.
[7.] 8. 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
A. 7422 6
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.] 9. 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] EIGHT. 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
such other accusatory instruments; and such is the case even though such
order dismisses the main accusatory instrument underlying the judgment.
[9.] 10. 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, or WAS otherwise invalid as a matter of law. Where the judg-
ment 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 [subdivisions] SUBDIVISION two [and three] of section
440.10, other than paragraph (d) of subdivision two of such section
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] 440.27 or, to the extent that the [defendant] APPLICANT
cannot be resentenced to death consistent with the laws of this state or
the constitution of this state or of the United States, resentence the
[defendant] APPLICANT 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
A. 7422 7
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.
3. Notwithstanding the provisions of subdivision one, the court may
deny such a motion when the ground or issue raised thereupon was previ-
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] APPLI-
CANT 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 [and] BY A PRO SE APPLICANT, upon
reasonable notice to the people[. Upon the motion, a defendant], TO THE
COURT IN WHICH THE JUDGMENT AND SENTENCE WERE ENTERED. THE APPLICANT
SHALL PROVIDE SUCH COURT WITH A PLAIN STATEMENT OF THE LEGAL CLAIM OR
CLAIMS THE APPLICANT INTENDS TO RAISE.
(B) THE COURT MAY IN ITS DISCRETION ASSIGN COUNSEL TO THE APPLICANT;
PROVIDED, HOWEVER, THE COURT SHOULD CAREFULLY CONSIDER ASSIGNING COUNSEL
WHERE THE APPLICANT RAISES A COLORABLE CLAIM AND ASSIGNING COUNSEL WOULD
PROMOTE THE FAIR ADMINISTRATION OF JUSTICE.
(C) IF THE COURT DECLINES TO ASSIGN COUNSEL, IT SHALL STATE THE
REASONS FOR DENYING THE REQUEST IN WRITING.
(D) IF AT THE TIME OF THE APPLICANT'S REQUEST FOR ASSIGNMENT OF COUN-
SEL, THE SENTENCING JUDGE OR JUSTICE NO LONGER SITS IN THE COURT IN
WHICH THE SENTENCE WAS IMPOSED, THE REQUEST SHALL BE RANDOMLY ASSIGNED
TO ANOTHER JUDGE OR JUSTICE OF THE COURT.
(E) NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO LIMIT THE RIGHT
OF AN APPLICANT TO THE ASSIGNMENT OF COUNSEL WHEN A COURT HAS ORDERED A
HEARING ON A MOTION PURSUANT TO THIS ARTICLE.
2. (A) IN CONNECTION WITH THE PREPARATION BEFORE FILING OR PROCEEDING
AFTER FILING OF A MOTION PURSUANT TO SECTION 440.10, AND UPON A SHOWING
THAT THE PROSPECTIVE APPLICANT OR APPLICANT HAS SOUGHT THE REQUESTED
MATERIAL FROM FORMER TRIAL COUNSEL AND, WHERE APPLICABLE, FORMER APPEL-
LATE COUNSEL WITHOUT SUCCESS, THE COURT MUST ORDER THE PEOPLE TO PRODUCE
A. 7422 8
DISCOVERY MATERIAL THAT IS POTENTIALLY RELEVANT TO THE INVESTIGATION OR
PRESENTATION OF AN IDENTIFIABLE CLAIM UNDER THIS ARTICLE. A MOTION FOR
DISCOVERY UNDER THIS PARAGRAPH MUST BE BROUGHT UPON NOTICE TO THE PEOPLE
AND MAY BE MADE IN ANTICIPATION OF THE FILING OF A MOTION TO VACATE A
FELONY JUDGMENT OF CONVICTION OR AFTER SUCH MOTION HAS BEEN FILED. THE
COURT SHALL DENY A REQUEST MADE PURSUANT TO THIS PARAGRAPH WHERE THE
APPLICANT INTENDS TO OR HAS CHALLENGED A JUDGMENT OF CONVICTION THAT IS
NOT A FELONY DEFINED IN SECTION 10.00 OF THE PENAL LAW, OR THE REQUESTED
MATERIAL IS OTHERWISE CONTAINED IN ACCESSIBLE COURT FILES.
(B) THERE SHALL BE A PRESUMPTION IN FAVOR OF DISCLOSURE WHEN CONSIDER-
ING AND DECIDING APPLICATIONS FOR DISCOVERY UNDER PARAGRAPH (A) OF THIS
SUBDIVISION.
(C) THE COURT MAY ORDER THAT DISCLOSURE OF EVIDENCE OR PROPERTY BE
SUBJECT TO A PROTECTIVE ORDER AS SUBJECT TO THE GROUNDS SPECIFIED IN
SECTION 245.70 OF THIS PART, WHERE APPROPRIATE.
(D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT THE POWER TO
SUBPOENA EVIDENCE PURSUANT TO SECTION 610.20.
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]
THEY INTEND to challenge the judgment or sentence. If the motion is
based upon the existence or occurrence of facts, the motion papers must
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 or his or her] APPLICANT OR THEIR
counsel, if any, an answer denying or admitting any or all of the alle-
gations of the motion papers, and may further submit documentary
evidence or information 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
A. 7422 9
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
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 been conducted on such evidence, and if the]
results [had] been admitted in the trial resulting in the judgment,
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
A. 7422 10
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
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) (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 THEIR 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 IMPOSE AN APPRO-
PRIATE REMEDY.
(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) 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
A. 7422 11
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-
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. WHERE THE APPLICANT'S MOTION FOR RELIEF REQUESTS THE PERFORM-
ANCE OF ANY OTHER FORENSIC TESTING OF EVIDENCE SECURED IN THE CASE, THE
COURT SHALL GRANT THE APPLICATION FOR TESTING OF SUCH EVIDENCE, UPON ITS
DETERMINATION THAT HAD THE RESULTS OF FORENSIC TESTING OF EVIDENCE BEEN
AVAILABLE AT THE TIME OF TRIAL OR PLEA AND BEEN FAVORABLE TO THE APPLI-
CANT, THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME WOULD HAVE BEEN
MORE FAVORABLE TO THE APPLICANT; OR
6. 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. 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) 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 attending
the case, there is no reasonable possibility that such allegation is
true.
5.] 7. 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
A. 7422 12
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.
8. THE COURT MUST GRANT A HEARING WHERE:
(A) THE MOVING PAPERS ALLEGE A GROUND CONSTITUTING A LEGAL BASIS FOR
MOTION; AND
(B) THE MOTION PAPERS ARE BASED UPON THE EXISTENCE OR OCCURRENCE OF
FACTS AND CONTAIN SWORN ALLEGATIONS SUBSTANTIATING OR TENDING TO
SUBSTANTIATE ALL THE ESSENTIAL FACTS, AS REQUIRED BY SUBDIVISION ONE OF
THIS SECTION; AND
(C) NO ALLEGATION OF FACT ESSENTIAL TO SUPPORT THE MOTION IS CONCLU-
SIVELY REFUTED BY UNQUESTIONABLE DOCUMENTARY PROOF; AND
(D) ALLEGATIONS OF FACT ESSENTIAL TO SUPPORT THE MOTION ARE NOT
CONTRADICTED BY A COURT RECORD OR OTHER OFFICIAL DOCUMENT, THEREBY
ESTABLISHING THE REASONABLE POSSIBILITY THAT SUCH ALLEGATIONS ARE TRUE.
9. If the court does not determine the motion pursuant to [subdivi-
sions two, three or four] SUBDIVISION FOUR OR FIVE, 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 does] THEY DO not so waive
[it] SUCH RIGHT and if [he is] THEY ARE confined in a prison or other
institution of this state, the court must cause [him] THEM to be
produced at such hearing.
[6.] 10. 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.
[7.] 11. 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. Section 470.15 of the criminal procedure law is amended by adding
a new subdivision 2-a to read as follows:
2-A. IN AN APPEAL PURSUANT TO SUBDIVISION THREE OR FOUR OF SECTION
450.10 FROM AN ORDER ENTERED PURSUANT TO SECTION 440.10, 440.11 OR
440.20 DENYING A MOTION TO VACATE A JUDGMENT OR SENTENCE, WHEN THE
APPLICANT PROCEEDED WITHOUT COUNSEL IN THE COURT BELOW AFTER HAVING
APPLIED FOR AND BEEN DENIED COUNSEL UNDER SUBDIVISION ONE OF SECTION
440.30, EXCEPT WHEN THE COURT PROPERLY REFUSED TO ASSIGN COUNSEL BASED
ON THE APPLICANT'S FINANCIAL ABILITY TO RETAIN COUNSEL, THE INTERMEDIATE
APPELLATE COURT MAY REVERSE THE ORDER, DIRECT THE COURT TO ASSIGN COUN-
SEL, AND REMIT THE MATTER FOR DE NOVO CONSIDERATION. SUCH CORRECTIVE
ACTION IS AUTHORIZED WHEN THE INTERMEDIATE APPELLATE COURT DETERMINES
THAT ADDITIONAL FACTUAL OR LEGAL DEVELOPMENT IS NECESSARY AND APPROPRI-
ATE IN THE INTEREST OF JUSTICE TO PROPERLY RESOLVE THE MERITS OF THE
APPLICANT'S LEGAL CLAIM OR CLAIMS. NOTHING IN THIS SUBDIVISION SHALL BE
CONSTRUED TO LIMIT AN INTERMEDIATE APPELLATE COURT'S AUTHORITY TO REMIT
A MATTER TO THE TRIAL COURT FOR FURTHER PROCEEDINGS IN ANY OTHER CIRCUM-
STANCE.
§ 6. Section 450.10 of the criminal procedure law, as amended by chap-
ter 671 of the laws of 1971, subdivisions 1 and 2 as amended by chapter
671 of the laws of 1984, subdivision 3 as added and subdivision 4 as
renumbered by chapter 516 of the laws of 1986, and subdivision 5 as
added by chapter 560 if the laws of 1999, is amended to read as follows:
§ 450.10 Appeal by [defendant] PETITIONER to intermediate appellate
court; in what cases authorized as of right.
A. 7422 13
An appeal to an intermediate appellate court may be taken as of right
by the [defendant] PETITIONER from the following judgment, sentence and
order of a criminal court:
1. A judgment other than one including a sentence of death[, unless
the appeal is based solely upon the ground that a sentence was harsh or
excessive when such sentence was predicated upon entry of a plea of
guilty and the sentence imposed did not exceed that which was agreed to
by the defendant as a condition of the plea and set forth on the record
or filed with the court as required by subdivision five of section
220.50 or subdivision four of section 340.20;].
2. A sentence other than one of death, as prescribed in subdivision
one of section 450.30[, unless the appeal is based solely upon the
ground that a sentence was harsh or excessive when such sentence was
predicated upon entry of a plea of guilty and the sentence imposed did
not exceed that which was agreed to by the defendant as a condition of
the plea and set forth in the record or filed with the court as required
by subdivision five of section 220.50 or subdivision four of section
340.20;].
3. AN ORDER DENYING A MOTION, MADE PURSUANT TO SECTION 440.10 OR
440.11, TO VACATE A JUDGMENT OTHER THAN ONE INCLUDING A SENTENCE OF
DEATH; PROVIDED HOWEVER THAT THE INTERMEDIATE APPELLATE COURT, MAY,
AFTER MOTION BY THE PEOPLE UPON NOTICE TO THE PETITIONER, DISMISS THE
NOTICE OF APPEAL ON THE GROUNDS THAT THE MOTION TO VACATE THE JUDGMENT
IS UNSUPPORTED BY SWORN STATEMENTS OF FACT OR IS WHOLLY UNSUPPORTED BY
LAW OR BY ANY GOOD FAITH ARGUMENT IN SUPPORT OF AN EXTENSION THEREOF.
4. AN ORDER DENYING A MOTION, MADE PURSUANT TO SECTION 440.20, TO SET
ASIDE A SENTENCE OTHER THAN ONE INCLUDING A SENTENCE OF DEATH; PROVIDED
HOWEVER THAT THE INTERMEDIATE APPELLATE COURT MAY, AFTER MOTION BY THE
PEOPLE UPON NOTICE TO THE PETITIONER DISMISS THE NOTICE OF APPEAL ON THE
GROUNDS THAT THE MOTION TO VACATE THE SENTENCE IS UNSUPPORTED BY SWORN
STATEMENTS OF FACT OR IS WHOLLY UNSUPPORTED BY LAW OR BY ANY GOOD FAITH
ARGUMENT IN SUPPORT OF AN EXTENSION THEREOF.
5. A sentence including an order of criminal forfeiture entered pursu-
ant to section 460.30 of the penal law with respect to such forfeiture
order.
[4.] 6. An order, entered pursuant to section 440.40, setting aside a
sentence other than one of death, upon motion of the People.
[5.] 7. An order denying a motion, made pursuant to subdivision one-a
of section 440.30, for forensic DNA testing of evidence.
§ 7. Section 450.15 of the criminal procedure law is REPEALED.
§ 8. Subdivision 1 of section 450.30 of the criminal procedure law, as
amended by chapter 671 of the laws of 1984, is amended to read as
follows:
1. An appeal by the [defendant] PETITIONER from a sentence, as
authorized by subdivision two of section 450.10, may be based upon the
ground that such sentence either was (a) invalid as a matter of law, or
(b) harsh or excessive. A sentence is invalid as a matter of law not
only when the terms thereof are unauthorized but also when it is based
upon an erroneous determination that the [defendant] PETITIONER had a
previous valid conviction for an offense or, in the case of a resentence
following a revocation of a sentence of probation or conditional
discharge, upon an improper revocation of such original sentence. [An
appeal by the defendant from a sentence, as authorized by subdivision
three of section 450.15, may be based upon the ground that such sentence
was harsh or excessive.]
A. 7422 14
§ 9. Subdivision 4 of section 722 of the county law, as amended by
chapter 141 of the laws of 2008, is amended to read as follows:
4. Representation according to a plan containing a combination of any
of the foregoing. Any judge, justice or magistrate in assigning counsel
pursuant to sections 170.10, 180.10, 210.15 and 720.30 of the criminal
procedure law, OR IN ASSIGNING COUNSEL PURSUANT TO SUBDIVISION ONE OF
SECTION 440.30 OF THE CRIMINAL PROCEDURE LAW, or in assigning counsel to
[a defendant] AN APPLICANT when a hearing has been ordered in a proceed-
ing upon a motion, pursuant to article four hundred forty of the crimi-
nal procedure law, to vacate a judgment or to set aside a sentence [or
on a motion for a writ of error coram nobis], OR IN ASSIGNING COUNSEL TO
AN APPLICANT IN CONNECTION WITH AN APPEAL THEREFROM PURSUANT TO SECTION
450.10 OR 450.20 OF THE CRIMINAL PROCEDURE LAW, or in assigning counsel
pursuant to the provisions of section two hundred sixty-two of the fami-
ly court act or section four hundred seven of the surrogate's court
procedure act, or in assigning counsel to [a defendant] AN APPLICANT
when a case has been calendared for consideration of resentencing pursu-
ant to subdivision four of section six hundred one-d of the correction
law or when a court is otherwise called upon to consider whether a prop-
er term of post-release supervision was imposed as part of a determinate
sentence, shall assign counsel furnished in accordance with a plan
conforming to the requirements of this section; provided, however, that
when the county or the city in which a county is wholly contained has
not placed in operation a plan conforming to that prescribed in this
subdivision or subdivision three of this section and the judge, justice
or magistrate is satisfied that a conflict of interest prevents the
assignment of counsel pursuant to the plan in operation, or when the
county or the city in which a county is wholly contained has not placed
in operation any plan conforming to that prescribed in this section, the
judge, justice or magistrate may assign any attorney in such county or
city and, in such event, such attorney shall receive compensation and
reimbursement from such county or city which shall be at the same rate
as is prescribed in section seven hundred twenty-two-b of this article.
When a case has been calendared for consideration of resentencing pursu-
ant to subdivision four of section six hundred one-d of the correction
law or when a court is otherwise called upon to consider whether a prop-
er term of post-release supervision was imposed as part of a determinate
sentence, the attorney appointed should be the attorney who appeared for
the [defendant] APPLICANT in connection with the judgment or sentence
or, if the [defendant] APPLICANT is currently represented concerning
[his or her] THEIR conviction or sentence or with respect to an appeal
from [his or her] THEIR conviction or sentence, such present counsel.
§ 10. 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: (A) THE TOP CONVICTION CHARGE FOR EACH APPLICATION OR MOTION;
(B) 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; (C) THE OUTCOME OF EACH MOTION FILED WHETH-
A. 7422 15
ER DENIED WITHOUT HEARING, DENIED WITH HEARING, VACATUR GRANTED, OR
OTHER; AND (D) THE AVERAGE LENGTH OF TIME MOTIONS UNDER ARTICLE FOUR
HUNDRED FORTY OF THE CRIMINAL PROCEDURE LAW REMAIN 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 INDIVIDUAL APPLICANTS. THE REPORT SHALL BE RELEASED
PUBLICLY AND PUBLISHED ON THE WEBSITES OF THE OFFICE OF COURT ADMINIS-
TRATION 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.
§ 11. 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.
§ 12. This act shall take effect on the sixtieth day after it shall
have become a law and shall apply to all motions that are not final as
of such effective date.