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Same as: A9430 Versions: S6234C, S6234B, S6234A, S6234

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S6234 Actions

S6234C - ADVANCED TO THIRD READING - Jun 10, 2010
S6234C - 2ND REPORT CAL. - Jun 9, 2010
S6234C - 1ST REPORT CAL.840 - Jun 8, 2010
S6234C - AMEND AND RECOMMIT TO CODES - May 28, 2010
S6234C - PRINT NUMBER 6234C - May 28, 2010
S6234C - AMEND AND RECOMMIT TO CODES - May 18, 2010
S6234C - PRINT NUMBER 6234B - May 18, 2010
S6234C - AMEND (T) AND RECOMMIT TO CODES - Feb 3, 2010
S6234C - PRINT NUMBER 6234A - Feb 3, 2010
S6234C - REFERRED TO CODES - Jan 6, 2010
S6234C - REFERRED TO RULES - Oct 19, 2009

S6234 Memo

BILL NUMBER: S6234

TITLE OF BILL : An act to amend the criminal procedure law, in relation to establishing the actual innocence justice act of 2009

PURPOSE : This bill would permit the Court in which a judgment of conviction was entered to grant a post-conviction motion to vacate a judgment based on actual innocence.

SUMMARY OF PROVISIONS :

Section one of the bill entitles the act the "Actual Innocence Justice Act of 2009".

Section two of the bill adds a new paragraph (i) to subdivision one of section 440.10 of the Criminal Procedure Law to provide that actual innocence shall be a ground upon which a defendant may base his or her post-conviction motion.

Section three of the bill adds a new subdivision (3-a) to section 440.10 of the Criminal Procedure Law to render inapplicable to the new section 440.10(i) motions certain provisions requiring or permitting the denial of a motion to vacate a judgment.

Section four of the bill amends subdivision (2) of section 440.30 of the criminal procedure law to make certain conforming changes.

Section five of the bill establishes the effective date.

JUSTIFICATION : According to experts, DNA exonerations represent only a small fraction of all of the wrongful convictions found in the United States. Between the years of 2003-2008, approximately 64% of all the exonerations in the United States were based on non-DNA evidence. Experts observe that the percentage of exonerations based on non-DNA evidence in New York State is only increasing. For these individuals, the Criminal Procedure Law currently offers only limited hope for collateral relief by establishing a series of post-conviction procedural roadblocks that, taken together, can deprive an innocent person from having his or her innocence claim fully and fairly aired. The tragic result -

as graphically demonstrated in hundreds of wrongful conviction cases throughout the country

is that an innocent person can spend years or even decades behind bars while the real perpetrator remains free to commit more crimes and terrorize additional victims. Presently, a defendant who claims factual innocence can request a criminal court to grant a post-conviction motion to vacate the prior conviction under Criminal Procedure Law section 440.10(1) (g) or

Section 440.10 (1)(h).

Section 440.10(1)(g) allows generally for a defendant to challenge his or her conviction based on new evidence which could not have been produced by the defendant at trial. CPL section 440.10(1)(h) allows for a defendant to challenge the constitutionality of his or her conviction on collateral review. However, under section 440.10(1)(g), the new evidence must have been discovered since the entry of judgment, and unable to have been produced at trial by the defendant even with due diligence. Under section 440.10(1)(g), the defendant must make a motion with due diligence after the discovery of such evidence. Under section 440(1)(h), the defendant must claim a violation of constitutional right either under the New York State or the United States constitution. Several local courts have already mentioned the possibility of a post-conviction claim based on actual innocence, SEE PEOPLE V. WHEELER-WHICHARD , 884 N.Y.S.2d 304, 313, (Sup. Ct., Kings Co 2009) and PEOPLE V. COLE 1 Misc.3d 531, 765 N.Y.S.2d 477 (Sup. Ct., Kings Co 2003), and no higher courts in New York State have expressly recognized "actual innocence" as a ground under CPL 440.10(1)(h).

This bill would create a freestanding ground of "actual innocence" under existing CPL 440.10(1) upon which a criminal court could grant a post-conviction motion to vacate a prior judgment of conviction. Under a newly added paragraph (i) of CPL 440.10(1), and corresponding amendments to the procedural provisions of CPL 440.30, a criminal court would be empowered to vacate its own judgment of conviction where, notwithstanding the defendant's inaction or failure to use "due diligence" at an earlier stage of the trial or appellate proceedings, the defendant is able to present "reliable and relevant" proof that "conclusively establishes" the defendant's actual innocence of the crime or crimes of which he or she was convicted. To ensure that a defendant cannot benefit from prior, purposeful, inaction aimed at "gaming" the system, the bill would specifically permit the court to deny a request where it determines that the defendant's prior failure to act amounted to "the intentional use of dilatory tactics aimed at obtaining a strategic or procedural advantage" in the case. In People v.Tankleff, the lower court denied Tankleff's motion to vacate judgment based on 440.10(1)(g) and 440.10(1)(h). Tankleff's direct appeal of the verdict to the appellate division and a federal habeas appeal had also been previously denied. In denying the motion based on 440.10(1)(g), the trial court found the defendant did not exercise due diligence in moving for a new trial. The 440.10(1)(h) motion was denied based on the court's finding that there exists no constitutional right to relief based on actual innocence. If it had not been for the appellate division remitting the case to the county court for a new trial, Tankleff's wrongful conviction would most likely never have been heard due to the limited nature of the few remedies available to him. The grounds upon which a defendant can make a motion to vacate judgment must be expanded. It is presumably a rare instance where one previously convicted is able to later conclusively satisfy the court that he or she in fact did not commit the criminal acts that form the basis of that conviction. In these rare and exceptional cases, the administration of justice would be deeply flawed if a set of procedural restrictions could permanently foreclose any option of overturning a wrongful conviction and offering a new trial to an innocent defendant. This bill is intended to address these rare instances by creating an express provision, within the existing CPL post-conviction framework, for "actual innocence" to be adjudicated and true justice achieved.

LEGISLATIVE HISTORY : This is a new bill.

FISCAL IMPLICATIONS : Done.



EFFECTIVE DATE : This act shall take effect immediately.

S6234 Text

S T A T E O F N E W Y O R K
6234
2009-2010 Regular Sessions I N SENATE October 19, 2009
Introduced by Sens. SCHNEIDERMAN, AUBERTINE, DIAZ, DUANE, HASSELL-THOMP SON, HUNTLEY, KRUEGER, MONTGOMERY, ONORATO, STAVISKY, THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Rules

AN ACT to amend the criminal procedure law, in relation to establishing the actual innocence justice act of 2009

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


Section 1. This act shall be known as the "actual innocence justice act of 2009".

S 2. Subdivision 1 of section 440.10 of the criminal procedure law is amended by adding a new paragraph (i) to read as follows:
(I) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH HE OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT IS ACTUALLY INNOCENT WHERE THERE EXIST SUFFICIENT EVIDENTIARY FACTS AND INFERENCES, PRESENTED BY SWORN AFFIDAVIT OR OTHER RELIABLE AND RELEVANT PROOF, THAT, WHEN VIEWED IN LIGHT OF THE RECORD AS A WHOLE, CONCLUSIVELY ESTABLISH THE DEFENDANT DID NOT COMMIT SUCH CRIME OR CRIMES.

S 3.

Section 440.10 of the criminal procedure law is amended by adding a new subdivision 3-a to read as follows:
3-A. THE PROVISIONS OF PARAGRAPH (C) OF SUBDIVISION TWO AND THE PROVISIONS OF SUBDIVISION THREE REQUIRING OR PERMITTING THE DENIAL OF A MOTION TO VACATE A JUDGMENT PURSUANT TO THIS SECTION SHALL NOT APPLY TO A MOTION BROUGHT PURSUANT TO PARAGRAPH (I) OF SUBDIVISION ONE; PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY WHERE THE COURT, BASED ON RECORD EVIDENCE, DETERMINES THAT THE DEFENDANT'S FAILURE TO ACT OR LACK OF DUE DILIGENCE WAS THE DIRECT RESULT OF HIS OR HER INTENTIONAL USE OF DILATORY TACTICS AIMED AT OBTAINING A STRATEGIC OR PROCEDURAL ADVANTAGE IN THE PROSECUTION OF THE APPEAL OF, OR MOTION TO VACATE, SUCH JUDGMENT. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14838-01-9
S. 6234 2

S 4. Subdivision 2 of section 440.30 of the criminal procedure law is amended to read as follows:
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, EXCEPT AS OTHERWISE PROVIDED BY SUBDIVISION THREE-A OF SECTION 440.10, 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, EXCEPT AS OTHERWISE PROVIDED BY SUBDIVISION THREE-A OF SECTION 440.10, in its discretion either (a) summarily deny the motion, or (b) proceed to consider the merits thereof.

S 5. This act shall take effect immediately.

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