S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         6551

                              2011-2012 Regular Sessions

                                 I N  A S S E M B L Y

                                    March 21, 2011
                                      ___________

       Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
         Committee on Codes

       AN ACT to amend the criminal procedure law, in relation to  establishing
         the actual innocence justice act of 2011

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Short title.  This act shall be known as the "actual  inno-
    2  cence justice act of 2011".
    3    S  2.  Subparagraph  (ii) of paragraph (i) of subdivision 1 of section
    4  440.10 of the criminal procedure law, as added by  chapter  332  of  the
    5  laws  of  2010,  is  amended and a new paragraph (j) is added to read as
    6  follows:
    7    (ii) official documentation of the defendant's status as a  victim  of
    8  sex  trafficking  or  trafficking  in persons at the time of the offense
    9  from a federal, state or local government agency shall create a presump-
   10  tion that the defendant's participation in the offense was a  result  of
   11  having  been  a victim of sex trafficking or trafficking in persons, but
   12  shall not be required for granting a motion under this paragraph[.]; OR
   13    (J) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH
   14  HE OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT  IS
   15  ACTUALLY  INNOCENT  WHERE  IT  IS  ESTABLISHED  BY  CLEAR AND CONVINCING
   16  EVIDENCE THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT  UNDER
   17  A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE.
   18    S 3. Subdivision 4 of section 440.10 of the criminal procedure law, as
   19  amended  by  chapter  332  of  the  laws  of 2010, is amended to read as
   20  follows:
   21    4. If the court grants the motion, it  must,  except  as  provided  in
   22  subdivision  five  or six of this section, vacate the judgment, and must
   23  dismiss the accusatory instrument, or order a new trial,  or  take  such
   24  other  action  as is appropriate in the circumstances.  IF THE DEFENDANT
   25  HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU-

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04653-02-1

 A. 6551                             2

    1  ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND-
    2  ANT OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND  IN
    3  LIGHT  OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE ACCUSATORY
    4  INSTRUMENT.
    5    S 4. Section 440.10 of the criminal procedure law is amended by adding
    6  a new subdivision 9 to read as follows:
    7    9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST
    8  ADDRESS  THE  MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT CAN SHOW,
    9  IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB-
   10  ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
   11    S 5. This act shall take effect immediately.