Senate Bill S6319A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6319
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                              March 10, 2025
                                ___________
 
 Introduced by Sens. MYRIE, CLEARE, COMRIE, RIVERA, SALAZAR, SEPULVEDA --
   read  twice  and  ordered printed, and when printed to be committed to
   the Committee on Codes
 
 AN ACT to amend the criminal procedure law and  the  judiciary  law,  in
   relation  to  motions  to  vacate  judgment;  and  to  repeal  certain
   provisions of the criminal procedure 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.
   § 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)
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00248-03-5
              

 S. 6319                             2
 
 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
 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
 S. 6319                             3

 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
 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
 S. 6319                             4
 
 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
   (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.
 S. 6319                             5

   [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
 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
 S. 6319                             6

   (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-
 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,
 S. 6319                             7

 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 THEIR 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.
   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.
   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 PROSECUTION OR
 DEFENSE.
 S. 6319                             8
 
   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] 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 [defend-
 ant]  APPLICANT  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] THEIR coun-
 sel, if any, an answer denying or admitting any or all  of  the  allega-
 tions  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
 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
 S. 6319                             9

 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
 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
 S. 6319                            10

 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 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 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-
 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
 S. 6319                            11
 
 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 OF THIS SECTION,  it
 must conduct a hearing and make findings of fact essential to the deter-
 mination thereof. The [defendant] APPLICANT has a right to be present at
 such hearing but may waive such right in writing.  If [he] THE APPLICANT
 does  not  so  waive  it 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.] 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.
   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.
 S. 6319                            12
 
   § 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.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6319--B
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                              March 10, 2025
                                ___________
 
 Introduced  by  Sens.  MYRIE, CLEARE, COMRIE, FAHY, FERNANDEZ, GONZALEZ,
   HARCKHAM, JACKSON, MAY, RAMOS, RIVERA, SALAZAR, SEPULVEDA, SERRANO  --
   read  twice  and  ordered printed, and when printed to be committed to
   the Committee on Codes -- recommitted to the  Committee  on  Codes  in
   accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee  --  committee  discharged,  bill  amended,  ordered  reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the criminal procedure law and  the  judiciary  law,  in
   relation  to  motions to vacate judgment; to amend the criminal proce-
   dure law, in relation to making conforming changes; to amend the coun-
   ty law, in relation to assigning counsel in connection with an appeal;
   and to repeal certain provisions of the criminal procedure law  relat-
   ing 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 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, THE COURT IN WHICH IT
 WAS ENTERED MAY, UPON MOTION OF THE APPLICANT, VACATE SUCH CONVICTION:
   (A) UPON THE GROUND THAT THE APPLICANT WAS  CONVICTED  OF  AN  OFFENSE
 WHICH  HAS  BEEN SUBSEQUENTLY DECRIMINALIZED, UNLESS THE LEGISLATURE HAS
 EXPRESSLY PROVIDED THAT DECRIMINALIZATION SHALL APPLY PROSPECTIVELY ONLY
 AND SHALL NOT APPLY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE  DATE  OF
 SUCH LAW; OR
   (B) THE OFFENSE FOR WHICH THE APPLICANT WAS CONVICTED WAS SUBSEQUENTLY
 REDUCED TO A LESSER DEGREE OFFENSE BY THE LEGISLATURE AND SUCH REDUCTION
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00248-11-6
              

 S. 6319--B                          2
 
 HAS  BEEN MADE RETROACTIVE BY THE LEGISLATURE OR BY CONTROLLING JUDICIAL
 AUTHORITY; OR
   (C)  THE  UNDISPUTED ACT OR ACTS FOR WHICH THE APPLICANT WAS CONVICTED
 HAVE BEEN SUBSEQUENTLY DETERMINED BY CONTROLLING 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  APPLI-
 CANT  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,
 DISMISS THE ACCUSATORY INSTRUMENT AND MAY TAKE SUCH ADDITIONAL 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 ACCORDINGLY.
   § 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
 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 judgment
 based upon a verdict of guilty after trial, which could  not  have  been
 produced  by  the [defendant] APPLICANT at the trial even with due dili-
 gence on [his] THE APPLICANT'S part and which is of such character as to
 create a REASONABLE probability that had such evidence been received  at
 the trial, the verdict would have been more favorable to the [defendant]
 APPLICANT;  [provided  that a motion based upon such ground must be made
 with due diligence after the discovery of such alleged new evidence]; or
 S. 6319--B                          3
 
   (II) NEW EVIDENCE HAS BEEN DISCOVERED SINCE THE ENTRY  OF  A  JUDGMENT
 BASED  UPON  A  GUILTY  PLEA,  WHICH COULD NOT HAVE BEEN PRODUCED BY THE
 APPLICANT PRIOR TO THE ENTRY OF THE GUILTY PLEA EVEN WITH DUE  DILIGENCE
 ON  THE APPLICANT'S 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.
   [(g-1) Forensic DNA] (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:
   (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 [defendant] APPLICANT.
   (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]
 THE APPLICANT FACES ONGOING COLLATERAL CONSEQUENCES, INCLUDING POTENTIAL
 OR  ACTUAL  IMMIGRATION  CONSEQUENCES  BASED  ON  A  POSSIBLE OR IMPOSED
 SENTENCE OF THREE HUNDRED SIXTY-FIVE DAYS.  There shall be a  rebuttable
 presumption  that  a conviction by plea to such an offense was not know-
 S. 6319--B                          4
 
 ing, voluntary and  intelligent,  based  on  ongoing  collateral  conse-
 quences,  including  potential  or  actual immigration 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 CHAPTER NINE-
 TY-TWO OF the laws of two thousand twenty-one [that amended  this  para-
 graph]  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, 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 CONSTITUTIONS BY THE
 COURT OF APPEALS, AN INTERMEDIATE APPELLATE COURT OR A U.S.  COURT  WITH
 JURISDICTION OVER NEW YORK.
   2. THE COURT MUST GRANT A HEARING WHERE:
   (A)  THE  MOVING PAPERS ALLEGE A GROUND CONSTITUTING A LEGAL BASIS FOR
 MOTION;
   (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;
   (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.
   3. Notwithstanding the provisions of subdivision one OF THIS  SECTION,
 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 (i) 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 [defend-
 ant's] APPLICANT'S unjustifiable failure to take or  perfect  an  appeal
 during the prescribed period or to [his or her] THE APPLICANT'S unjusti-
 fiable  failure  to  raise  such ground or issue upon an appeal actually
 perfected by [him or her] THEM unless the issue raised upon such  motion
 is ineffective assistance of counsel; or
 S. 6319--B                          5
 
   (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.]  4.  Notwithstanding  the  provisions  of subdivision one OF THIS
 SECTION, 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
 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 THE APPLICANT HAS SUBMITTED NEW EVIDENCE  THAT
 COULD  NOT  HAVE BEEN PREVIOUSLY PRODUCED WITH THE EXERCISE OF DUE DILI-
 GENCE 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.
   (D) WHEN MAKING A DETERMINATION UNDER PARAGRAPHS (B) AND (C)  OF  THIS
 SUBDIVISION,  THE COURT MUST CONSIDER WHETHER THE APPLICANT WAS UNREPRE-
 SENTED BY COUNSEL ON THE PREVIOUS MOTION, WAS INCARCERATED AT  THE  TIME
 IT  WAS  FILED, AND ANY OTHER FACT OR CIRCUMSTANCE THAT MAY HAVE LIMITED
 OR IMPEDED THE APPLICANT'S ABILITY TO ADEQUATELY  RAISE  OR  ARGUE  SUCH
 GROUND OR ISSUE.
   [4.]  5.  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.
   6.  If  the  court  grants  the motion, it must, except as provided in
 subdivision [five or six] SEVEN, EIGHT OR ELEVEN of this section, vacate
 the judgment, 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.] 7. 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
 S. 6319--B                          6
 
 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.] 8. 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, OR UNDER PARAGRAPH (I) OR (K)
 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] APPLICANT'S participation in the offense was a
 result of having been a victim of trafficking.
   [7.] 9. 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.]  10.  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 OF THIS SECTION.  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 dispo-
 sition  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 vaca-
 tion completely restores such other accusatory instruments; and such  is
 the case even though such order dismisses the main accusatory instrument
 underlying the judgment.
   [9.] 11. 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] AN  ALTERNA-
 TIVE 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.
 S. 6319--B                          7
 
   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 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 OF THIS ARTICLE  as  applied  to  a
 separate  sentencing  proceeding  under  section  400.27  OF  THIS PART,
 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 OF THIS ARTICLE, the court must also apply  [subdivisions
 two and] SUBDIVISION three of SUCH section [440.10, other than paragraph
 (d)  of  subdivision two of such section,] 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 OF THIS PART 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 paragraphs of subdivision one
 of section 440.10 OF THIS ARTICLE 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 OF THIS SECTION,
 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 deter-
 mination  there  has  been  a  retroactively effective change in the law
 controlling such issue.
   3.  Notwithstanding the provisions of subdivision one OF THIS SECTION,
 the court may deny such a motion when the ground or issue raised  there-
 upon  was  previously  determined  on  the merits upon a prior motion or
 proceeding in a court of this state, other than an appeal from the judg-
 ment, 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 deter-
 mination, 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
 S. 6319--B                          8
 
 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, and upon  reason-
 able  notice  to  the  people[. Upon the motion, a defendant] AND TO THE
 COURT  IN  WHICH  THE  JUDGMENT AND SENTENCE WERE ENTERED. THE APPLICANT
 SHALL PROVIDE THE COURT WITH A PLAIN STATEMENT OF  THE  LEGAL  CLAIM  OR
 CLAIMS THE APPLICANT INTENDS TO RAISE.
   (B)  IF,  AFTER REVIEWING THE APPLICANT'S LEGAL CLAIM, THE COURT FINDS
 THAT THERE IS A REASONABLE POSSIBILITY THAT THE APPLICANT IS ENTITLED TO
 RELIEF UNDER THIS ARTICLE, IT SHALL ASSIGN AN ATTORNEY TO FURTHER PURSUE
 THE CLAIM.
   (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 SUCH APPLICANT'S REQUEST FOR ASSIGNMENT OF
 COUNSEL, 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 OF THIS ARTICLE, AND
 UPON  A  SHOWING  THAT THE PROSPECTIVE APPLICANT OR APPLICANT HAS SOUGHT
 THE REQUESTED MATERIAL FROM FORMER TRIAL COUNSEL AND, WHERE  APPLICABLE,
 FORMER  APPELLATE  COUNSEL  WITHOUT  SUCCESS,  THE  COURT MUST ORDER THE
 PEOPLE TO PRODUCE DISCOVERY MATERIAL THAT IS POTENTIALLY RELEVANT TO THE
 INVESTIGATION OR PRESENTATION OF AN IDENTIFIABLE CLAIM UNDER THIS  ARTI-
 CLE.  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 OF THIS CHAPTER.
   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] APPLICANT or [his or her] THEIR  coun-
 sel,  if  any,  an answer denying or admitting any or all of the allega-
 S. 6319--B                          9
 
 tions 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
 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
 S. 6319--B                         10

   (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 AVAILABLE AT THE TIME OF THE TRIAL OR  PLEA  AND  HAD
 BEEN  admitted in the trial resulting in the judgment, there [exists] IS
 a reasonable probability that the verdict OR PLEA OFFER 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
 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 THE APPLICANT'S 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
 S. 6319--B                         11
 
 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
 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.
   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:
 S. 6319--B                         12
 
   (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 OF THIS ARTICLE OR SUBDIVISION TWO OF
 SECTION 440.20 OF THIS  ARTICLE,  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  OF  THIS  ARTICLE OR SUBDIVISION THREE OF SECTION 440.20 OF THIS
 ARTICLE, 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 SIX OR SEVEN OF THIS SECTION, it
 must conduct a hearing and make findings of fact essential to the deter-
 mination thereof. The [defendant] APPLICANT has a right to be present at
 such hearing but may waive such right in writing.  If [he] THE APPLICANT
 does 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.
 S. 6319--B                         13
 
   [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 OF THIS TITLE FROM AN ORDER ENTERED PURSUANT TO  SECTION  440.10,
 440.11  OR 440.20 OF THIS TITLE 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  OF  THIS TITLE, 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 COUNSEL, AND REMIT THE  MATTER  FOR  DE  NOVO
 CONSIDERATION.  SUCH CORRECTIVE ACTION IS AUTHORIZED WHEN THE INTERMEDI-
 ATE APPELLATE COURT DETERMINES THAT ADDITIONAL FACTUAL OR LEGAL DEVELOP-
 MENT IS NECESSARY AND APPROPRIATE 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 CIRCUMSTANCE.
   § 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 of 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.
   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;] OF THIS TITLE.
   3.  AN  ORDER  DENYING  A  MOTION,  MADE PURSUANT TO SECTION 440.10 OR
 440.11 OF THIS TITLE, 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 EXTEN-
 SION THEREOF.
   4.  AN  ORDER  DENYING  A  MOTION,  MADE PURSUANT TO SECTION 440.20 OR
 440.46-A OF THIS TITLE, TO SET ASIDE A SENTENCE OTHER THAN ONE INCLUDING
 S. 6319--B                         14
 
 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 EXTEN-
 SION 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 OF THIS TITLE,
 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] FOUR of section 440.30 OF THIS TITLE, 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.]
   § 9. Subdivision 1 of section 450.90 of the criminal procedure law, as
 amended  by  chapter  31  of  the  laws  of  2019, is amended to read as
 follows:
   1. Provided that a certificate granting  leave  to  appeal  is  issued
 pursuant  to section 460.20, an appeal may, except as provided in subdi-
 vision two, be taken to the court of appeals by either the defendant  or
 the  people from any adverse or partially adverse order of an intermedi-
 ate appellate court entered upon an appeal taken  to  such  intermediate
 appellate court pursuant to section 450.10, [450.15,] or 450.20, or from
 an order granting or denying a motion to set aside an order of an inter-
 mediate  appellate  court  on  the  ground  of ineffective assistance or
 wrongful deprivation of appellate counsel, or by either the defendant or
 the people from any adverse or partially adverse order of an  intermedi-
 ate  appellate  court  entered upon an appeal taken to such intermediate
 appellate court from an order entered  pursuant  to  section  440.46  or
 section  440.47  of  this chapter. An order of an intermediate appellate
 court is adverse to the party who was the appellant in such  court  when
 it affirms the judgment, sentence or order appealed from, and is adverse
 to  the  party who was the respondent in such court when it reverses the
 judgment, sentence or order appealed  from.  An  appellate  court  order
 which modifies a judgment or order appealed from is partially adverse to
 each party.
   § 10. Subdivision 4 of section 460.10 of the criminal procedure law is
 REPEALED.
 S. 6319--B                         15
 
   § 11. Paragraph (a) of subdivision 1 of section 460.60 of the criminal
 procedure law, as amended by chapter 168 of the laws of 1981, is amended
 to read as follows:
   (a) A judge who, pursuant to section 460.20 of this [chapter] ARTICLE,
 has received an application for a certificate granting a defendant leave
 to  appeal  to  the  court  of  appeals from an order of an intermediate
 appellate court affirming or modifying a judgment including  a  sentence
 of  imprisonment[,] OR a sentence of imprisonment, [or an order appealed
 pursuant to section 450.15 of this chapter,] of a criminal  court,  may,
 upon  application  of  such  defendant-appellant issue an order both (i)
 staying or suspending the execution of the judgment pending the determi-
 nation of the application for leave to appeal, and, if that  application
 is  granted, staying or suspending the execution of the judgment pending
 the determination of the appeal,  and (ii) either releasing the  defend-
 ant  on  [his]  THEIR  own recognizance or continuing bail as previously
 determined or fixing bail pursuant to the  provisions  of  article  five
 hundred  thirty OF THIS CHAPTER. Such an order is effective  immediately
 and that phase of the order staying or suspending execution of the judg-
 ment does not  become  effective  unless  and  until  the  defendant  is
 released,  either on [his] THEIR own recognizance or upon the posting of
 bail.
   § 12. 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
 S. 6319--B                         16
 
 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.
   § 13. 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, 440.11, 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 SUBDI-
 VISION 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 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 DEPART-
 MENT.  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 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.
   §  14.  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.
   § 15. This act shall take effect on the sixtieth day  after  it  shall
 have  become a law and shall apply to all motions filed on or after such
 effective date, and to motions filed prior to such effective  date  that
 are  pending  on  such  effective  date  either in the trial court or on
 appeal, and to motions for which the applicant's time to seek permission
 to appeal has not expired by such effective date.