§ 440.30 Motion to vacate judgment and to set aside sentence; procedure.

1. (a) A motion to vacate a judgment pursuant to section 440.10 of
this article and a motion to set aside a sentence pursuant to section
440.20 of this article must be made in writing and upon reasonable
notice to the people. Upon the motion, a defendant who is in a position
adequately to raise more than one ground should raise every such ground
upon which he or she intends to challenge the judgment or sentence. If
the motion is based upon the existence or occurrence of facts, the
motion papers must contain sworn allegations thereof, whether by the
defendant 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 may further submit documentary evidence or information
supporting or tending to support the allegations of the moving papers.
The people may file with the court, and in such case must serve a copy
thereof upon the defendant or his or her counsel, if any, an answer
denying or admitting any or all of the allegations of the motion papers,
and may further submit documentary evidence or information refuting or
tending to refute such allegations. 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
innocence 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
property 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. (a) (1) Where the defendant'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 resulting in the judgment, the
court shall grant the application for forensic DNA testing of such
evidence upon its determination that if a DNA test had been conducted on
such evidence, and if the results had been admitted in the trial
resulting in the judgment, there exists a reasonable probability that
the verdict would have been more favorable to the defendant.

(2) Where the defendant's motion for forensic DNA testing of specified
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
superior 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
determination 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
testing 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 property or related relief, the interests of
justice would be served by tolling such limitation period.

(b) In conjunction with the filing of a motion under this subdivision,
the court may direct the people to provide the defendant 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. 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, on motion of the
defendant, 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
investigation or prosecution of the defendant against DNA databanks by
keyboard searches, or a similar method that does not involve uploading,
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 agencies 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 admitted in
the trial resulting in the judgment, a reasonable probability exists
that the verdict would have been more favorable to the defendant, 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. 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. 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
substantiated 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
subdivision one; or

(c) An allegation of fact essential to support the motion is
conclusively 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. If the court does not determine the motion pursuant to subdivisions
two, three or four, it must conduct a hearing and make findings of fact
essential to the determination thereof. The defendant has a right to be
present at such hearing but may waive such right in writing. If he does
not so waive it and if he is confined in a prison or other institution
of this state, the court must cause him to be produced at such hearing.

6. At such a hearing, the defendant has the burden of proving by a
preponderance of the evidence every fact essential to support the
motion.

7. 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.