S T A T E   O F   N E W   Y O R K
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                                  11123

                          I N  A S S E M B L Y

                              May 18, 2010
                               ___________

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

AN  ACT  to  amend  the  criminal procedure law, in relation to vacating
  judgments based upon forensic DNA tests

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

  Section 1. Paragraph (h) of subdivision 1 and subdivision 5 of section
440.10 of the criminal procedure law are amended to read as follows:
  (h)  NEW  EVIDENCE  CONSISTING  OF  FORENSIC DNA TEST RESULTS HAS BEEN
DISCOVERED SINCE THE ENTRY OF JUDGMENT BASED  UPON  A  PLEA  OF  GUILTY,
WHICH  WAS NOT AVAILABLE TO THE DEFENDANT PRIOR TO THE PLEA AND WHICH IS
OF SUCH CHARACTER AS TO CREATE A PROBABILITY THAT HAD SUCH EVIDENCE BEEN
KNOWN BY THE DEFENDANT PRIOR TO THE ENTRY OF A PLEA OF GUILTY  THAT  THE
PLEA WOULD NOT HAVE BEEN ENTERED; PROVIDED THAT A MOTION BASED UPON SUCH
GROUND  MUST  BE  MADE  WITH  DUE  DILIGENCE AFTER THE DISCOVERY OF SUCH
ALLEGED NEW EVIDENCE; OR
  (I) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States.
  5.  Upon granting the motion upon the ground, as prescribed  in  para-
graph  (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 in that the
conviction would have been for a lesser offense than the  one  contained
in  the  verdict,  OR AS PRESCRIBED IN PARAGRAPH (H) OF SUBDIVISION ONE,
THAT NEWLY DISCOVERED EVIDENCE CONSISTING OF FORENSIC DNA  TEST  RESULTS
CREATES A PROBABILITY THAT HAD SUCH EVIDENCE BEEN KNOWN BY THE DEFENDANT
PRIOR TO THE ENTRY OF A PLEA OF GUILTY THAT THE PLEA WOULD NOT HAVE BEEN
ENTERED, 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 accordingly.
  S 2. Subdivision 1 of section 440.20 of the criminal procedure law, as
amended by chapter 1 of the laws of 1995, is amended to read as follows:

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

                                                           LBD17298-01-0

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  1.  At  any time after the entry of a judgment, the court in which the
judgment was entered may, upon motion of the defendant,  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) OR (I)
of subdivision one of section 440.10 as applied to a separate sentencing
proceeding under section 400.27, provided, however, that to  the  extent
the  ground  or  grounds  asserted  include one or more of the aforesaid
paragraphs of subdivision one of section 440.10,  the  court  must  also
apply subdivisions two and three of 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 or, to the
extent that the defendant 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 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.
  S  3. Paragraph (a) of subdivision 1-a of section 440.30 of the crimi-
nal procedure law, as amended by chapter 138 of the  laws  of  2004,  is
amended and a new paragraph (c) is added to read as follows:
  (a)  Where  the  defendant's motion TO VACATE A CONVICTION OR JUDGMENT
requests the performance of a forensic DNA test on  specified  evidence,
INCLUDING  BODILY  FLUIDS, BIOLOGICAL SAMPLES, AND PHYSICAL OBJECTS, and
upon the court's determination that [any] evidence containing deoxyribo-
nucleic acid ("DNA") was  [secured]  OBTAINED  in  connection  with  the
COLLECTION OF EVIDENCE FROM THE CRIME SCENE OR OTHER RELEVANT LOCATIONS,
INVESTIGATION OR PREPARATION OF THE CASE, NEGOTIATION FOR DISPOSITION OR
trial  resulting  in the judgment, the court shall grant the application
for forensic [DNA] testing FOR DNA of such evidence  upon  its  determi-
nation  that  if  a DNA test had been conducted on such evidence, and if
[the] EXCULPATORY results  had  been  AVAILABLE  TO  THE  DEFENDANT  FOR
PRETRIAL  PROCEEDINGS OR POST TRIAL PROCEDURES OR admitted [in the] AT A
trial resulting in the judgment, there exists a reasonable [probability]
POSSIBILITY that the verdict OR OTHER PROCEEDINGS  OR  PROCEDURES  would
have been more favorable to the defendant.
  (I)  TO  DETERMINE WHETHER THE REQUEST FOR DNA FORENSIC TESTING SHOULD
BE GRANTED, THE COURT SHALL CONSIDER THE AVAILABILITY OF NEWLY DEVELOPED
TESTS AND ADVANCES IN TECHNOLOGY THAT MAY MAKE  IT  POSSIBLE  TO  OBTAIN
EXCULPATORY DNA TEST RESULTS THAT WERE NOT PREVIOUSLY OBTAINED.
  (II)  A  DEFENDANT  WHO PLEADED GUILTY MAY SEEK DNA TESTING UNDER THIS
SUBDIVISION. A GUILTY PLEA SHALL NOT BAR THE MAKING OF THE  REQUEST  FOR
TESTING  AND  THE MOTION TO VACATE THE CONVICTION OR JUDGEMENT SHALL NOT
BE DENIED BECAUSE THE DEFENDANT PREVIOUSLY PLEADED GUILTY IN THE CASE.
  (C) IN CONNECTION WITH A PENDING MOTION MADE PURSUANT TO THIS SECTION,
THE COURT MAY DIRECT, BY ORDER OR ISSUANCE OF A SUBPOENA, THE PROSECUTOR

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OR OTHER AGENCY OF THE STATE OR LOCAL GOVERNMENT TO  PROVIDE  THE  PETI-
TIONER  WITH  INFORMATION,  INCLUDING DOCUMENTS, NOTES, LOGS OR REPORTS,
RELATING TO PHYSICAL ITEMS COLLECTED IN CONNECTION WITH THE  CASE  WHERE
IT  IS  LIKELY  THAT  SUCH  PHYSICAL ITEMS, IF SUBJECTED TO DNA TESTING,
WOULD MEET THE TEST SET OUT IN PARAGRAPH (A) OF  THIS  SUBDIVISION.  THE
COURT MAY ORDER STATE OR LOCAL AGENCIES TO PROVIDE REASONABLE ASSISTANCE
AND  TAKE REASONABLE STEPS TO LOCATE RECORDS OR ITEMS WHICH ARE ASSERTED
TO HAVE BEEN LOST OR DESTROYED. THE COURT ORDER MAY  DIRECT  EFFORTS  TO
LOCATE THE ITEMS IN STATE OR LOCAL GOVERNMENT OFFICES, PUBLIC OR PRIVATE
HOSPITALS AND LABORATORIES, AND OTHER FACILITIES.
  S 4. This act shall take effect immediately.