Bill S2003-2011

Provides for the collection of DNA samples from all persons convicted of a crime and establishes the office of wrongful evidence review; repealer

Provides for the collection of DNA samples from all persons convicted of a crime; establishes the office of wrongful evidence review within the division of criminal justice services; provides for access to certain DNA evidence in cases where a defendant may have been wrongfully convicted; extends the statute of limitations in certain cases where there is DNA evidence.

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  • Jan 4, 2012: REFERRED TO FINANCE
  • Jan 14, 2011: REFERRED TO FINANCE

Memo

 BILL NUMBER:  S3110

TITLE OF BILL :

An act to amend the executive law, in relation to the collection of DNA samples from designated offenders, collection and preservation of biological evidence, and establishing the office of wrongful conviction review; to amend the criminal procedure law, in relation to the statute of limitations for criminal offenses, access by defendants to DNA evidence, and procedures for consideration of post-conviction relief; to amend the penal law, in relation to the conditions of probation and conditional discharge; to amend the court of claims act, in relation to claims for unjust conviction and imprisonment; to repeal subdivision 7 of section 995 of the executive law relating to the definition of "designated offender" for purposes of the DNA identification index; and providing for the repeal of certain provisions upon expiration thereof

PURPOSE :

This bill: (1) requires collection of DNA samples from everyone convicted of a crime, and ensures proper collection of such samples; (2) extends statutes of limitations to permit prosecutions based on DNA evidence; (3) expands the access of defendants to potentially exculpatory DNA evidence; (4) requires prosecutors to alert courts to exculpatory evidence and authorizes prosecutors to move for convictions to be vacated; (5) eliminates overly restrictive limits on compensation for wrongful convictions; and (6) provides for review of exonerations in an effort to identify and correct flaws in the criminal justice system that increase the chance of a wrongful conviction.

SUMMARY OF PROVISIONS :

Section 1 of the bill amends Executive Law §995 to require that a DNA sample be collected from every person convicted of a crime, adjudicated a youthful offender, or subject to registration as a sex offender.

Section 2 of the bill amends Executive Law §995-c(3) to: (1) specify the public servants responsible for collection of DNA samples from designated offenders; (2) allow certain fees to support such collection; (3) ensure that DNA samples can be collected from uncooperative offenders; and (4) address the possibility of DNA profiles being wrongly included in the state identification index.

Section 3 of the bill amends Executive Law §995-f to provide that it is a violation of a defendant's conditions of probation or parole for the defendant to fail to provide a DNA sample when required.

Section 4 of the bill amends Executive Law §995-c(4) to provide that the Division of Criminal Justice Services shall promulgate rules and regulations governing procedures for obtaining DNA samples from persons subject to registration as sex offenders.

Section 5 of the bill adds a new subdivision 3-a to Executive Law. §995-b to require the Commission on Forensic Science to develop voluntary guidelines reflecting best practices in the collection and preservation of biological evidence by law enforcement agencies and forensic laboratories.

Section 6 of the bill adds a new section 837-s to the Executive Law to create an Office of Wrongful Conviction Review within the Division of Criminal Justice Services. The office will review cases in which defendants were exonerated, to determine the causes of wrongful convictions and consider reforms that could lessen the likelihood of similar unjust convictions in the future. The reviews will include participation by prosecutors, defense attorneys, former judges, and other experts.

Sections 7 and 8 of the bill amend Criminal Procedure Law §§ 160.50(1) (d) and 190 25(4) to provide that the Office of Wrongful Conviction Review will have access to otherwise unavailable materials pertaining to grand jury proceedings and terminations of criminal cases in favor of the accused.

Section 9 of the bill amends Criminal Procedure Law §3010(4)(a) to provide that the statute of limitations shall be tolled for up to five years when a DNA profile identified from crime scene evidence could not with reasonable diligence be matched to a known individual.

Section 10 of the bill adds a new subdivision 1-a to Criminal Procedure Law §240.40 to provide a defendant a pre-trial discovery right, on appropriate showings, to have crime scene DNA evidence compared with his or her own DNA, or compared against DNA databanks.

Sections 11, 12, 13, and 14 of the bill amend Criminal Procedure Law § 440.10 to provide that a defendant shall file any motion for post-conviction relief within one year after the conviction becomes final, and shall include all grounds for such relief in a single motion rather than file successive motions. Noncompliance with these requirements can warrant denial of the motion, but motions based on newly discovered evidence of innocence may be made at any time, and even if the defendant has previously sought and been denied post-conviction relief.

Section 15 of the bill amends Criminal Procedure Law §440.30(1-a)(a) to extend access to DNA testing for purposes of post-conviction relief, on proper showings, to a defendant who pled guilty. It also allows a defendant to apply for crime scene DNA evidence to be tested not only against his or her own DNA, but also against profiles in DNA databanks maintained by law enforcement.

Section 16 of the bill adds a new subdivision 8 to Criminal Procedure Law §section 440.30 to provide that if the prosecution becomes aware of evidence exonerating a convicted defendant, it is required to notify the court, which shall notify the defendant, appoint defense counsel if appropriate, and may consider releasing the defendant on bail.

Section 17 of the bill adds a new subdivision 7 to Criminal Procedure Law §440.40 to provide that the prosecution may move to vacate a judgment of conviction on the ground of a defendant's actual innocence. It provides for appointment of defense counsel, consideration of release on bail, and prompt judicial resolution through either a summary grant of the motion or an evidentiary hearing.

Section 18 of the bill adds a new subdivision 4-b to Penal Law §65.10 to provide that when a court imposes a sentence that includes probation or a conditional discharge, it shall require as a mandatory condition of such sentence that the defendant provide a DNA sample.

Section 19 of the bill amends Court of Claims Act §8-b to provide that an unjustly convicted defendant may obtain compensation whether or not the defendant's conviction was overturned on one of the grounds currently enumerated in the statute, as long as it was overturned for reasons involving facts and circumstances directly supporting the defendant's claim of innocence.

Section 20 of the bill provides for an effective date of November 1, 2009. It applies the expansion of DNA collection to any defendant convicted or adjudicated a youthful offender on or after that date, and to any person incarcerated or subject to probation or parole supervision, or to a sex offender registration requirement, on or after that date. It also provides that the provisions relating to the Office of Wrongful Conviction Review shall expire on September 1, 2013.

EXISTING LAW :

DNA samples are currently collected from persons convicted of some but not all crimes. The list of crimes subject to collection has been expanded three times, but many misdemeanor convictions remain outside the scope of collection. Currently there is no DNA collection from persons adjudicated youthful offenders or subject to sex offender registration. Existing law does not make clear which officials are responsible for collecting DNA samples in various cases, nor does it require that defendants provide DNA samples as a condition of probation or parole.

There is no requirement to develop best practice guidelines for collection and preservation of biological evidence Nor is there a requirement to study cases in which defendants have been wrongfully convicted and subsequently exonerated.

Criminal Procedure Law §30.10(4)(a) provides that the statute of limitations shall be tolled for up to five years when the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence This has been interpreted to include defendants whose identity is unknown.

Criminal Procedure Law §240.40 defines the scope of a defendant's right of pretrial discovery of existing evidence, but it does not include the authority to apply for court-ordered DNA testing.

Article 440 of the Criminal Procedure Law currently places no limitations on when or how many motions for post-conviction relief may be filed by a defendant Section 440.30(1-a) provides that a defendant may apply for DNA testing of evidence secured in connection with the trial, but it does not include application for an order to have.such evidence compared against DNA databanks maintained by law enforcement. Moreover, in PEOPLE V. BYRDSONG , 33 A.D.3d 175 (2d Dept. 2006), the existing authority was held inapplicable to defendants who pled guilty. There is currently no mechanism in the Criminal Procedure Law for a prosecutor to move for a judgment of conviction to be vacated, even when new evidence would support a claim of innocence Prosecutors do not currently have an explicit legal or ethical duty to bring such evidence to the attention of a court.

Section 8-b of the Court of Claims Act allows wrongfully convicted defendants to seek compensation from the State. However, this provision is currently restricted by a requirement that the defendant must show that the conviction was overturned on one of certain enumerated procedural grounds, even if it was in substance based on facts supporting a claim of innocence.

STATEMENT IN SUPPORT :

DNA technology is already a valuable tool for both law enforcement and criminal defendants. This bill significantly expands the value of this tool for all parties. It will result in more persons who are guilty of crimes being identified, prosecuted, and convicted. It will also give defendants facing trial, and those wrongfully convicted, significantly greater access to DNA testing for purposes of exoneration.

1. EXPANSION OF THE DNA DATABANK

The benefits of DNA comparisons to law enforcement are well documented and commonly known. When crime scene DNA evidence is matched to a profile in a DNA databank, it can allow the prompt identification and prosecution of the guilty party. The benefits of such comparisons to wrongfully convicted defendants are also well known. DNA testing has resulted in exoneration of numerous defendants, including some in New York, who were imprisoned for substantial periods.

The demonstrated effectiveness of these techniques has already led the Legislature on several occasions to expand the scope of DNA collections from convicted defendants. Yet, no provisions exist for collecting samples from persons convicted of various misdemeanors, from youthful offenders, or from persons subject to registration as sex offenders Experience has shown that having samples from an expanded pool of convicted defendants, even if their convictions are only for low-level crimes, can substantially enhance the utility of DNA in solving more serious crimes. Solving a crime typically can result in convicting the guilty, but can also result in exonerating the innocent.

2. ENSURING PROPER COLLECTION AND PRESERVATION OF DNA SAMPLES

The bill further enhances the use of DNA technology by ensuring that defendants required to give samples actually do so. Currently there are failures to collect samples from a substantial number of defendants who "fall through the cracks." The bill addresses this problem by specifying the public officers responsible for collecting the samples, and by requiring that a defendant under probation or parole supervision provide a DNA sample as a condition of that supervision By facilitating the successful collection of a DNA sample from every person convicted of a crime, adjudicated a youthful offender, or subject to registration as a sex offender, this bill will make for more effective law enforcement and more effective defense of the innocent.

In addition to increasing the size of DNA databanks, the bill will enhance their integrity as well. The bill requires the Commission on Forensic Science to develop voluntary guidelines reflecting best practices in the collection and preservation of biological evidence, and it requires periodic review to ensure that DNA profiles that should not be in the state index are removed.

3. EXTENDING STATUTES OF LIMITATIONS TO PERMIT DNA IDENTIFICATIONS

Currently, a statute of limitations is extended by up to five years if the whereabouts of the defendant are continuously unknown and continuously unascertainable by the exercise of reasonable diligence. When law enforcement has identified a perpetrator's DNA profile from a crime scene, the same policy considerations apply, and indeed apply even more strongly given the reliability and durability of DNA evidence. The most effective technique for ascertaining the identity of the perpetrator is to enter the profile into DNA databanks where it can be compared against existing profiles and periodically re-compared as new profiles come into that databank. There is no reason to require further diligence through avenues of investigation likely to be much less effective.

4. EXONERATING THE INNOCENT

While expansion of the DNA databank will be of value to prosecutors and defendants alike, there are other provisions of the bill that will significantly increase the value of DNA technology specifically to the wrongfully accused. While defendants currently have the right to apply for DNA testing to support post-conviction relief, this bill removes four significant limitations on that right.

First, the current right is limited to the post-conviction context. When DNA technology can establish the innocence of a criminal defendant, it is obviously far preferable to do so before trial, rather than after conviction and possibly lengthy imprisonment This bill extends the availability of DNA testing to defendants as a matter of pre-trial discovery.

Second, the right to apply for DNA testing has been held inapplicable to defendants who pled guilty. Actual experience shows that even in cases of guilty pleas, convicted defendants have occasionally been exonerated. While there may not be many such defendants, their need for redress is compelling, and this bill would give them access to DNA testing on an appropriate showing.

Third, the right to apply for DNA testing is limited to comparison between crime scene evidence and the defendant's own DNA. Yet it can also be highly useful for an innocent defendant to obtain comparison between crime-scene evidence and government databanks that include DNA profiles of persons convicted of crimes and other crime scene evidence. A match to a databank profile can lead to further investigation that can in turn identify another party as the actual perpetrator and thus exonerate the defendant. This bill therefore allows such comparisons.

Fourth, merely obtaining exonerative DNA evidence is not enough unless there are procedures ensuring its proper judicial consideration. This bill, for the first time, would create an obligation for prosecutors to bring exonerative evidence, whether or not based on DNA, to the attention of the court When such evidence is so strong as to lead the prosecutor to conclude that the defendant is actually innocent, it creates for the first time a procedural vehicle by which the prosecutor can move for the judgment of conviction to be vacated. In either case, there are also provisions that ensure the prompt and appropriate judicial attention to such evidence, including the appointment of defense counsel when necessary, the possibility of the convicted defendant's release on bail, and evidentiary hearings on the exonerative evidence. Taken together, these innovations will vastly enhance the value of DNA evidence to the wrongfully accused.

5. STREAMLINING PROCEDURES FOR POST-CONVICTION RELIEF

The bill also includes provisions that will make the procedures for seeking post conviction relief more streamlined, efficient, and timely. Defendants are currently allowed to move for such relief whenever they wish, and as many times as they wish. Many defendants do indeed file motion after motion, creating serious and unnecessary burdens on the bench and bar. Common sense limitations similar to those followed in other jurisdictions would reduce those burdens while still allowing defendants to assert every colorable claim for post-conviction relief. In particular, under this bill, a defendant would have a full year after the conviction becomes final to assert all such claims in a single motion. Even thereafter, the bill would preserve the defendant's ability at any time to make even successive motions in certain cases when there is DNA testing or other newly discovered evidence to support a claim of innocence.

6. PROVIDING COMPENSATION TO EXONERATED DEFENDANTS

In addition to facilitating the exoneration of wrongfully convicted defendants, the bill would ensure their access to appropriate remedies following such exoneration. While there is already a remedy in the Court of Claims Act for exonerated defendants to seek damages from the State, this remedy is limited by an overly restrictive limitation to claimants whose convictions were overturned on certain specified procedural bases. The bill removes that limitation to allow meritorious claims to go forward without regard to procedural distinctions that are not necessarily related to the claim of actual innocence.

7. INNOCENCE REVIEW OFFICE

Finally, the bill seeks not only to correct the mistakes of the past but also to learn from them. It establishes an Office of Wrongful Conviction Review that will study cases in which defendants have been wrongfully convicted and subsequently exonerated. This process, by identifying the flaws in the system that allowed such wrongful convictions to occur, should shed new light on how to reform the criminal justice system to minimize the chance that such miscarriages of justice may recur in the future.

LEGISLATIVE HISTORY :

2009-10: S.3110A Referred to Codes 2007: S.5848 - Passed Senate 52-9/Assembly Codes Hostile Amendment was defeated. The bill was debated. 2008: Senate Rules

FISCAL IMPLICATIONS :

Databank expansion would carry a fiscal impact, but the greatest expense - the capital cost of increasing testing capacity - has already been incurred in response to previous increases in the scope of collection. It is estimated that further expansion of collection to all crimes, including persons on probation, would require outsourced testing of about 50,000 samples, but because of the existing testing backlog, none of these costs will be incurred in the current fiscal year. After testing of the initial surge, it should be possible for the ongoing work on the expanded flow of cases to be handled within existing levels of lab expenditures. It is estimated that the new Office of Wrongful Conviction Review may cost up to $1 million per year. The other provisions of the bill are estimated to have minimal fiscal impact.

EFFECTIVE DATE This bill becomes effective on November 1, 2010, except that sections six through eight of the bill become effective April 1, 2011, and expire on September 1, 2014. The expanded scope of DNA collection would apply to any person who, on or after the effective date, is convicted of a crime, adjudicated a youthful offender, or is incarcerated or subject to requirements of probation or parole supervision or sex offender registration.

Text

STATE OF NEW YORK ________________________________________________________________________ 2003 2011-2012 Regular Sessions IN SENATE January 14, 2011 ___________
Introduced by Sen. SKELOS -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law, in relation to the collection of DNA samples from designated offenders, collection and preservation of biological evidence, and establishing the office of wrongful conviction review; to amend the criminal procedure law, in relation to the statute of limitations for criminal offenses, access by defendants to DNA evidence, and procedures for consideration of post-conviction relief; to amend the penal law, in relation to the conditions of probation and conditional discharge; to amend the court of claims act, in relation to claims for unjust conviction and imprisonment; to repeal subdivision 7 of section 995 of the executive law relating to the definition of "designated offender" for purposes of the DNA iden- tification index; and providing for the repeal of certain provisions upon expiration thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 7 of section 995 of the executive law is REPEALED and a new subdivision 7 is added to read as follows: 7. "DESIGNATED OFFENDER" MEANS A PERSON CONVICTED OF AND SENTENCED FOR A MISDEMEANOR DEFINED IN THE PENAL LAW OR A FELONY DEFINED IN THE PENAL LAW, OR A PERSON ADJUDICATED AND SENTENCED AS A YOUTHFUL OFFENDER PURSU- ANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE CRIMINAL PROCEDURE LAW FOR ANY SUCH MISDEMEANOR OR FELONY, OR A PERSON WHO IS REQUIRED TO REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW. S 2. Subdivision 3 of section 995-c of the executive law, as amended by chapter 576 of the laws of 2004, is amended to read as follows: 3. (A) Any designated offender [subsequent to conviction and sentenc- ing for a crime specified in subdivision seven of section nine hundred ninety-five of this article,] shall be required to provide a sample appropriate for DNA testing to determine identification characteristics
specific to such person and to be included in a state DNA identification index pursuant to this article. (B)(I) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM OF IMPRISONMENT, SUCH SAMPLE SHALL BE COLLECTED BY THE PUBLIC SERVANT TO WHOSE CUSTODY THE DESIGNATED OFFENDER HAS BEEN COMMITTED. (II) IN THE CASE OF A DESIGNATED OFFENDER WHO IS SENTENCED TO A TERM OF PROBATION, SUCH SAMPLE SHALL BE COLLECTED BY THE LOCAL PROBATION DEPARTMENT SUPERVISING THE DESIGNATED OFFENDER. (III) IN THE CASE OF A DESIGNATED OFFENDER WHO IS NEITHER SENTENCED TO A TERM OF IMPRISONMENT NOR PROBATION, SUCH SAMPLE SHALL BE COLLECTED BY THE PROBATION DEPARTMENT OF THE COUNTY IN WHICH SENTENCING TAKES PLACE, UNLESS AN ALTERNATE COLLECTION PROCEDURE HAS BEEN IMPLEMENTED. (IV) PROVIDED, HOWEVER, THAT NOTHING IN THIS PARAGRAPH SHALL PROHIBIT THE COLLECTION OF A DNA SAMPLE FROM A DESIGNATED OFFENDER BY ANY COURT OFFICIAL, STATE OR LOCAL CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT WHO HAS BEEN NOTIFIED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES THAT THE DESIGNATED OFFENDER HAS NOT PROVIDED A DNA SAMPLE. (C) NOTWITHSTANDING THE PROVISIONS OF ANY LAW TO THE CONTRARY, A CITY WITH A POPULATION OF ONE MILLION OR MORE OR ANY COUNTY ACTING THROUGH ITS LEGISLATIVE BODY, IS HEREBY AUTHORIZED AND EMPOWERED TO ADOPT, AMEND OR REPEAL A LOCAL LAW TO IMPOSE A DNA COLLECTION FEE NOT TO EXCEED FIFTY DOLLARS ON DESIGNATED OFFENDERS FROM WHOM ITS PROBATION DEPARTMENT IS REQUIRED BY SUBPARAGRAPH (III) OF PARAGRAPH (B) OF THIS SUBDIVISION TO COLLECT A DNA SAMPLE; PROVIDED, HOWEVER, THAT THE FAILURE OF A DESIG- NATED OFFENDER TO PAY SUCH DNA COLLECTION FEE, IF REQUIRED, SHALL NOT PREVENT THE COLLECTION OF THE OFFENDER'S DNA SAMPLE. (D) A PUBLIC SERVANT TO WHOSE CUSTODY A DESIGNATED OFFENDER WHO HAS NOT YET PROVIDED A DNA SAMPLE HAS BEEN COMMITTED MAY USE REASONABLE PHYSICAL FORCE TO COLLECT SUCH SAMPLE IF THE OFFENDER, AFTER WRITTEN OR ORAL REQUEST, REFUSES TO PROVIDE SUCH SAMPLE. (E) THE DETENTION, ARREST, INDICTMENT OR CONVICTION OF A PERSON BASED UPON DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX SHALL NOT BE INVALIDATED IF IT IS LATER DETERMINED THAT THE DIVISION OF CRIMI- NAL JUSTICE SERVICES INADVERTENTLY, BUT IN GOOD FAITH, COLLECTED OR PLACED THE PERSON'S DNA SAMPLE IN THE INDEX. (F) THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL PROMULGATE RULES AND REGULATIONS GOVERNING THE PERIODIC REVIEW OF THE DNA IDENTIFI- CATION INDEX TO DETERMINE WHETHER OR NOT THE INDEX CONTAINS DNA PROFILES THAT SHOULD NOT BE IN THE INDEX, INCLUDING THE STEPS NECESSARY TO EXPUNGE ANY PROFILES WHICH THE DIVISION DETERMINES SHOULD NOT BE IN THE INDEX. S 3. The opening paragraph of section 995-f of the executive law is designated subdivision 1 and a new subdivision 2 is added to read as follows: 2. ANY DESIGNATED OFFENDER SUBJECT TO PROBATION OR PAROLE SUPERVISION WHO IS REQUIRED TO PROVIDE A SAMPLE APPROPRIATE FOR DNA TESTING PURSUANT TO THE PROVISIONS OF THIS ARTICLE, AND WHO FAILS TO PROVIDE SUCH SAMPLE UPON NOTIFICATION BY A COURT, STATE OR LOCAL CORRECTION OFFICIAL OR EMPLOYEE, PROBATION OFFICER, PAROLE OFFICER, OR OTHER LAW ENFORCEMENT OFFICIAL OR PUBLIC SERVANT OF HIS OR HER OBLIGATION TO PROVIDE SUCH A SAMPLE, SHALL BE DEEMED TO VIOLATE THE CONDITIONS OF PROBATION OR PAROLE, AND SUCH VIOLATION SHALL BE A BASIS FOR THE REVOCATION OF PROBATION OR PAROLE IN ACCORDANCE WITH ARTICLE FOUR HUNDRED TEN OF THE CRIMINAL PROCEDURE LAW OR SECTION TWO HUNDRED FIFTY-NINE-I OF THIS CHAP-
TER. FOR PURPOSES OF THIS ARTICLE, "PAROLE SUPERVISION" SHALL BE DEEMED TO INCLUDE POST-RELEASE SUPERVISION. S 4. Subdivision 4 of section 995-c of the executive law, as amended by section 65 of part A of chapter 56 of the laws of 2010, is amended to read as follows: 4. The commissioner of [the division of] criminal justice services, in consultation with the commission, the commissioner of health, the divi- sion of parole, the director of the office of probation and correctional alternatives, and the department of correctional services, shall promul- gate rules and regulations governing the procedures for notifying desig- nated offenders of the requirements of this section. FURTHERMORE, THE COMMISSIONER OF CRIMINAL JUSTICE SERVICES SHALL ALSO PROMULGATE RULES AND REGULATIONS GOVERNING THE PROCEDURES FOR OBTAINING A SAMPLE APPRO- PRIATE FOR DNA TESTING FROM A PERSON WHO IS REQUIRED TO REGISTER AS A SEX OFFENDER PURSUANT TO ARTICLE SIX-C OF THE CORRECTION LAW. S 5. Section 995-b of the executive law is amended by adding a new subdivision 3-a to read as follows: 3-A. THE COMMISSION, IN CONSULTATION WITH THE DNA SUBCOMMITTEE, SHALL DEVELOP, WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS SUBDIVISION, VOLUNTARY GUIDELINES REFLECTING BEST PRACTICES REGARDING THE COLLECTION AND PRESERVATION OF BIOLOGICAL EVIDENCE BY LAW ENFORCEMENT AGENCIES AND FORENSIC LABORATORIES. SUCH VOLUNTARY GUIDELINES SHALL INCLUDE, BUT NOT BE LIMITED TO, THE MINIMUM PERIOD OF TIME THAT BIOLOGICAL EVIDENCE OBTAINED FROM CRIME SCENES SHOULD BE RETAINED. AS USED IN THIS SUBDIVI- SION, THE TERM "BIOLOGICAL EVIDENCE" SHALL MEAN SEMEN, BLOOD, SALIVA, HAIR, SKIN, TISSUE OR OTHER IDENTIFIED BIOLOGICAL MATERIAL, AND SHALL INCLUDE A SEXUAL ASSAULT FORENSIC EXAMINATION KIT. S 6. The executive law is amended by adding a new section 837-s to read as follows: S 837-S. OFFICE OF WRONGFUL CONVICTION REVIEW. THERE SHALL BE ESTAB- LISHED WITHIN THE DIVISION OF CRIMINAL JUSTICE SERVICES AN OFFICE OF WRONGFUL CONVICTION REVIEW, HEREINAFTER REFERRED TO IN THIS SECTION AS THE "OFFICE". THE OFFICE SHALL CONDUCT REVIEWS OF CRIMINAL AND JUVENILE CASES IN THIS STATE INVOLVING WRONGFUL CONVICTIONS AND CONSIDER WHETHER THERE MAY BE POSSIBLE REFORMS THAT COULD PROTECT AGAINST SIMILAR WRONG- FUL CONVICTIONS OCCURRING IN THE FUTURE. SUCH REVIEWS SHALL INCLUDE PARTICIPATION BY PROSECUTORS, DEFENSE ATTORNEYS, FORMER JUDGES AND OTHER EXPERTS IN RELEVANT FIELDS. WHENEVER A PERSON WHO HAS BEEN CONVICTED OF A CRIME OR ADJUDICATED A YOUTHFUL OFFENDER IS SUBSEQUENTLY DETERMINED TO BE INNOCENT OF SUCH OFFENSE AND EXONERATED, THE OFFICE SHALL REVIEW THE CIRCUMSTANCES OF SUCH CASE TO DETERMINE THE CAUSE OR CAUSES OF SUCH WRONGFUL CONVICTION. THE OFFICE SHALL CONDUCT SUCH REVIEWS OF PAST CASES INCLUDING, AT A MINIMUM, ALL CASES IN WHICH EXONERATION RESULTED FROM DNA EVIDENCE, AND ON AN ONGOING BASIS, ALL CASES IN WHICH A DEFENDANT IS EXONERATED. THE OFFICE SHALL MAKE AVAILABLE AN ANNUAL REPORT DETAILING, AT A MINIMUM, THE NUMBER OF CASES ACCEPTED FOR INVESTIGATION, THE NUMBER OF COMPLETED INVESTIGATIONS AND THE STATUS OF PENDING INVESTIGATIONS. THE REPORT SHALL INCLUDE THE OFFICE'S FINDINGS AND CONCLUSIONS AS TO THE CAUSE OR CAUSES OF WRONGFUL CONVICTIONS IN INVESTIGATIONS THAT IT HAS COMPLETED. THE REPORT SHALL BE PROVIDED TO THE GOVERNOR, ATTORNEY GENER- AL, CHIEF JUDGE OF THE COURT OF APPEALS, TEMPORARY PRESIDENT OF THE SENATE, SPEAKER OF THE ASSEMBLY AND TO GOVERNMENTAL UNITS OR AGENCIES THAT IT FINDS MAY HAVE BEEN INVOLVED IN THE INVESTIGATION OR ADJUDI- CATION OF WRONGFUL CONVICTIONS. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE OFFICE MAY REQUEST AND SHALL RECEIVE FROM ANY COURT, DEPART- MENT, DIVISION, BOARD, BUREAU, COMMISSION OR OTHER AGENCY OF THE STATE
OR POLITICAL SUBDIVISION THEREOF, OR ANY PUBLIC AUTHORITY SUCH ASSIST- ANCE, INFORMATION, RECORDS AND DATA AS WILL ENABLE IT EFFECTIVELY TO CARRY OUT ITS POWERS AND DUTIES. S 7. Paragraph (d) of subdivision 1 of section 160.50 of the criminal procedure law, as amended by chapter 169 of the laws of 1994, is amended to read as follows: (d) such records shall be made available to the person accused or to such person's designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this [chapter] PART, or (ii) a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license, or (iv) the [New York state] division of parole when the accused is on parole supervision as a result of conditional release or a parole release granted by the [New York] state board of parole, and the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, or (v) any prospective employer of a police officer or peace officer [as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of this chap- ter], in relation to an application for employment as a police officer or peace officer; provided, however, that every person who is an appli- cant for the position of police officer or peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanation thereto, or (vi) the probation department responsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred while the accused was under such supervision, OR (VII) THE DIVISION OF CRIMI- NAL JUSTICE SERVICES IN CONNECTION WITH INQUIRIES BY THE OFFICE OF WRONGFUL CONVICTION REVIEW ESTABLISHED BY SECTION EIGHT HUNDRED THIRTY- SEVEN-S OF THE EXECUTIVE LAW; and S 8. Subdivision 4 of section 190.25 of the criminal procedure law is amended by adding a new paragraph (c) to read as follows: (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, ALL GRAND JURY TESTI- MONY, EVIDENCE, DECISIONS, RESULTS AND OTHER MATTERS ATTENDING A GRAND JURY PROCEEDING SHALL BE DISCLOSED TO THE OFFICE OF WRONGFUL CONVICTION REVIEW ESTABLISHED BY SECTION EIGHT HUNDRED THIRTY-SEVEN-S OF THE EXECU- TIVE LAW, UPON ITS REQUEST, IN CONNECTION WITH AN INQUIRY BY SUCH OFFICE INTO A WRONGFUL CONVICTION RELATED TO SUCH GRAND JURY PROCEEDING. S 9. Paragraph (a) of subdivision 4 of section 30.10 of the criminal procedure law is amended to read as follows: (a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the where- abouts of the defendant were continuously unknown and continuously unas- certainable by the exercise of reasonable diligence OR (III) THE IDENTI- TY OF THE DEFENDANT WAS CONTINUOUSLY UNKNOWN AND A DEOXYRIBONUCLEIC ACID (DNA) RECORD OF THE DEFENDANT'S GENETIC CODE, OBTAINED BY FORENSIC DNA TESTING OF EVIDENCE LOCATED AT A TIME OR PLACE RELEVANT TO THE COMMIS- SION OF THE OFFENSE, COULD NOT BE MATCHED TO AN INDIVIDUAL IDENTIFIED BY DNA RECORDS CONTAINED IN THE STATE DNA IDENTIFICATION INDEX BY THE EXER- CISE OF REASONABLE DILIGENCE. However, in no event shall the period of limitation be extended by more than five years beyond the period other- wise applicable under subdivision two OF THIS SECTION.
S 10. Section 240.40 of the criminal procedure law is amended by adding a new subdivision 1-a to read as follows: 1-A. UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT OR SUPERIOR COURT INFORMATION IS PENDING, THE COURT IN WHICH SUCH ACCUSATORY INSTRU- MENT IS PENDING MAY ORDER A COMPARISON OF A DNA PROFILE DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT TO THE DEFENDANT'S DNA OR TO A DNA DATABANK UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPARISON IS MATERI- AL TO THE PREPARATION OF A DEFENSE, AND THAT THE REQUEST IS REASONABLE, PROVIDED THAT THE COURT SHALL NOT DO SO IF IT IS SATISFIED THAT THE PEOPLE HAVE SHOWN GOOD CAUSE WHY SUCH AN ORDER SHOULD NOT BE ISSUED. IF THE MOTION OF THE DEFENDANT IS FOR COMPARISON OF A GIVEN PROFILE DERIVED FROM DNA EVIDENCE TO A DNA DATABANK, THE COURT MAY DIRECT A STATE OR LOCAL PUBLIC FORENSIC LABORATORY TO ARRANGE FOR SUCH PROFILE TO BE ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE AND FEDERAL DNA DATABANKS TO THE EXTENT AND IN A MANNER CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES FOR FORENSIC DNA ANALYSIS MUST BE GENERATED AND REQUIREMENTS FOR SEARCHING AND STORAGE IN THE DATABANK IN QUESTION. IF SUCH A DATA- BANK SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT SHALL BE NOTIFIED OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN THIS ARTICLE SHALL BE DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON. S 11. The opening paragraph of subdivision 1 of section 440.10 of the criminal procedure law is amended to read as follows: [At any time after the entry of a judgment, the] THE court in which [it] A JUDGEMENT OF CONVICTION was entered may, upon A TIMELY motion of the defendant, vacate such judgment upon the ground that: S 12. Paragraph (d) of subdivision 2 of section 440.10 of the criminal procedure law is amended and two new paragraphs (e) and (f) are added to read as follows: (d) The ground or issue raised relates solely to the validity of the sentence and not to the validity of the conviction[.]; OR (E) THE DEFENDANT PREVIOUSLY BROUGHT A MOTION TO VACATE JUDGMENT, WHICH WAS DENIED BY THE COURT, AND THE DEFENDANT IS CURRENTLY SEEKING TO VACATE THE JUDGMENT ON A GROUND OTHER THAN NEWLY DISCOVERED EVIDENCE UNDER PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION; OR (F) THE DEFENDANT'S MOTION DOES NOT COMPLY WITH THE TIME LIMITS SET FORTH IN SUBDIVISION NINE OF THIS SECTION. S 13. The opening paragraph of paragraph (c) of subdivision 3 of section 440.10 of the criminal procedure law is amended to read as follows: Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the [ground or issue underlying the present motion] CLAIM OF NEWLY DISCOVERED EVIDENCE UNDER PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION but did not do so. S 14. Section 440.10 of the criminal procedure law is amended by adding a new subdivision 9 to read as follows: 9. ANY MOTION TO VACATE JUDGMENT BY A DEFENDANT MUST BE FILED WITHIN ONE YEAR OF THE DATE ON WHICH A JUDGMENT OF CONVICTION BECOMES FINAL BY THE CONCLUSION OF DIRECT REVIEW OR THE EXPIRATION OF THE TIME FOR SEEK- ING SUCH REVIEW; PROVIDED, HOWEVER, THAT A MOTION BY A DEFENDANT CLAIM- ING NEWLY DISCOVERED EVIDENCE UNDER PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION MAY BE MADE AT ANY TIME FOLLOWING THE DISCOVERY OF THE NEW
EVIDENCE SUPPORTING THE DEFENDANT'S CLAIM OF INNOCENCE. NOTHING IN THIS SUBDIVISION SHALL RELIEVE THE DEFENDANT OF THE OBLIGATION, SET FORTH IN PARAGRAPH (G) OF SUBDIVISION ONE OF THIS SECTION, TO SHOW THAT HE OR SHE HAS MADE THE MOTION TO VACATE JUDGMENT WITH DUE DILIGENCE AFTER THE DISCOVERY OF THE ALLEGED NEW EVIDENCE. S 15. 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 requests the performance of a foren- sic 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] PROCEEDINGS 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 result- ing in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant. IN THE CASE OF A DEFENDANT CONVICTED UPON A PLEA OF GUILTY, THE COURT SHALL GRANT THE APPLICATION ONLY UPON ITS DETERMINATION THAT IF THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT, THERE EXISTS A REASONABLE PROBABILITY THAT THE DEFENDANT WOULD NOT HAVE BEEN CONVICTED BY PLEA OF GUILTY OR OTHER- WISE, AND IN MAKING THAT DETERMINATION, THE COURT MAY CONSIDER, AMONG OTHER RELEVANT INFORMATION, THE PROCEEDINGS IN CONNECTION WITH THE DEFENDANT'S PLEA OF GUILTY. (C) IN ADDITION TO REQUESTING THE PERFORMANCE OF A FORENSIC DNA TEST OF SPECIFIED EVIDENCE, AS SET FORTH IN PARAGRAPH (A) OF THIS SUBDIVI- SION, THE DEFENDANT MAY ALSO MOVE FOR A COMPARISON OF A DNA PROFILE DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT TO A DNA DATABANK. IN DECIDING WHETHER TO GRANT A MOTION FOR SUCH COMPARISON, THE COURT MAY CONSIDER WHETHER THE DEFENDANT HAD THE OPPORTUNITY TO MOVE FOR SUCH A COMPARISON PURSUANT TO SUBDIVISION ONE-A OF SECTION 240.40 OF THIS PART, BUT UNJUSTIFIABLY FAILED TO DO SO. IF THE COURT GRANTS THE MOTION FOR SUCH A COMPARISON, IT MAY DIRECT A STATE OR LOCAL PUBLIC FORENSIC LABO- RATORY TO ARRANGE FOR SUCH PROFILE TO BE ENTERED INTO AND SEARCHED AGAINST LOCAL, STATE AND FEDERAL DNA DATABANKS TO THE EXTENT AND IN A MANNER CONSISTENT WITH FEDERAL AND STATE LAWS AND REGULATIONS GOVERNING SUCH DATABANKS, INCLUDING REQUIREMENTS AS TO HOW PROFILES FOR FORENSIC DNA ANALYSIS MUST BE GENERATED AND REQUIREMENTS FOR SEARCHING AND STOR- AGE IN THE DATABANK IN QUESTION. IF SUCH A DATABANK SEARCH REVEALS THAT THE DNA DERIVED FROM EVIDENCE RECOVERED BY LAW ENFORCEMENT MATCHES A PROFILE IN THE DATABANK, THE DEFENDANT SHALL BE NOTIFIED OF THE FACT THAT THERE WAS A MATCH WITH SOME SUCH PROFILE, AND THE COURT SHALL GRANT REASONABLE ADJOURNMENTS SO AS TO ALLOW THE PEOPLE TO PURSUE APPROPRIATE INVESTIGATIVE STEPS. NOTHING IN THIS ARTICLE SHALL BE DEEMED TO ALLOW A DEFENDANT TO OBTAIN AN ORDER REQUIRING COLLECTION OF A DNA SAMPLE FROM ANY OTHER PERSON. S 16. Section 440.30 of the criminal procedure law is amended by adding a new subdivision 8 to read as follows: 8. AT ANY TIME AFTER THE ENTRY OF A JUDGMENT, IF THE PEOPLE BECOME AWARE OF EVIDENCE THAT SUBSTANTIALLY TENDS TO EXONERATE A CONVICTED DEFENDANT AND WAS NOT PREVIOUSLY KNOWN TO THE DEFENSE, THE PEOPLE SHALL NOTIFY THE COURT OF THE EXISTENCE OF SUCH EVIDENCE. UPON RECEIPT OF SUCH NOTIFICATION, THE COURT SHALL NOTIFY THE DEFENDANT TO THE SAME EFFECT AND, IF APPROPRIATE, APPOINT DEFENSE COUNSEL SO THAT THE DEFENDANT MAY SEEK ANY APPROPRIATE REMEDY UNDER THIS ARTICLE. THE PEOPLE MAY MAKE NOTIFICATION TO A COURT PURSUANT TO THIS SUBDIVISION WITHOUT TAKING THE
POSITION THAT THE DEFENDANT WAS IN FACT INNOCENT AND, IF THE DEFENDANT MOVES FOR RELIEF UNDER THIS ARTICLE, THE PEOPLE MAY TAKE ANY POSITION, INCLUDING CONSENT OR OPPOSITION, AS TO SUCH MOTION. THE COURT MAY CONSIDER, BUT NEED NOT GRANT, THE DEFENDANT'S RELEASE ON BAIL PENDING THE DETERMINATION OF A MOTION MADE FOLLOWING SUCH A NOTIFICATION. S 17. The section heading of section 440.40 of the criminal procedure law is amended and a new subdivision 7 is added to read as follows: Motion to set aside sentence OR TO VACATE JUDGMENT; by people. 7. AT ANY TIME AFTER THE ENTRY OF A JUDGMENT, THE PEOPLE MAY, IN LIEU OF THE NOTIFICATION PROCEDURES SET FORTH IN SUBDIVISION EIGHT OF SECTION 440.30 OF THIS ARTICLE, MOVE TO VACATE A DEFENDANT'S JUDGMENT OF CONVICTION UPON THE GROUND THAT THE DEFENDANT IS ACTUALLY INNOCENT OF THE CHARGES UNDERLYING THE JUDGMENT. IN SUCH A MOTION, THE PEOPLE SHALL SET FORTH EVIDENTIARY FACTS AND INFERENCES SUPPORTING THE CONTENTION THAT THE DEFENDANT IS INNOCENT. UPON RECEIPT OF SUCH A MOTION, THE COURT SHALL ORDER THAT THE DEFENDANT BE PRODUCED BEFORE THE COURT WITHOUT DELAY. AT SUCH A COURT APPEARANCE, THE COURT MAY SUMMARILY GRANT THE MOTION BASED ON THE ALLEGATIONS IN THE PEOPLE'S MOTION AND IN ANY RESPONSIVE PAPERS FILED ON THE DEFENDANT'S BEHALF, AND BASED ON ANY ORAL ARGUMENTS MADE ON THE MOTION. IF THE COURT DOES NOT SUMMARILY GRANT THE MOTION: (A) IT MUST APPOINT COUNSEL FOR THE DEFENDANT IF THE DEFENDANT IS NOT ALREADY REPRESENTED BY COUNSEL, (B) IT MUST CONSIDER, BUT NEED NOT GRANT, A DEFENDANT'S RELEASE ON BAIL PENDING THE DETERMINATION OF THE MOTION, AND (C) IT MUST GRANT A PROMPT HEARING, AT WHICH THE PARTIES MAY CALL WITNESSES AND OFFER DOCUMENTARY EVIDENCE, BEFORE RENDERING ITS DECISION TO GRANT OR DENY THE MOTION. IF THE COURT DENIES THE MOTION, IT SHALL SET FORTH FINDINGS OF FACTS AND CONCLUSIONS OF LAW SUPPORTING ITS DECISION. S 18. Section 65.10 of the penal law is amended by adding a new subdi- vision 4-b to read as follows: 4-B. MANDATORY CONDITION FOR DNA DESIGNATED OFFENDERS. WHEN IMPOSING A SENTENCE OF PROBATION OR CONDITIONAL DISCHARGE UPON A PERSON CONVICTED OF AN OFFENSE SPECIFIED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINETY-FIVE OF THE EXECUTIVE LAW, THE COURT SHALL REQUIRE, AS A MANDATO- RY CONDITION OF SUCH SENTENCE, THAT SUCH PERSON PROVIDE A DNA SAMPLE AS REQUIRED BY SECTION NINE HUNDRED NINETY-FIVE-C OF THE EXECUTIVE LAW. S 19. Paragraph (b) of subdivision 3 and paragraph (b) of subdivision 5 of section 8-b of the court of claims act, as added by chapter 1009 of the laws of 1984, are amended to read as follows: (b) (i) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph [(a),] (b), (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) [hereof] OF THIS SUBPARAGRAPH), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) compara- ble provisions of the former code of criminal procedure or subsequent law; or (D) SUBDIVISION SEVEN OF SECTION 440.40 OF THE CRIMINAL PROCE- DURE LAW; OR (E) the statute, or application thereof, on which the accu- satory instrument was based violated the constitution of the United
States or the state of New York; OR (F) THE CLAIMANT'S CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN THIS PARAGRAPH; and (b) (i) he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint; or (ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph [(a),] (b), (c), [(e)] or (g) of subdivision one of section 440.10 of the criminal procedure law; or (B) subdivision one (where based upon grounds set forth in item (A) [hereof] OF THIS PARAGRAPH), two, three (where the count dismissed was the sole basis for the imprisonment complained of) or five of section 470.20 of the criminal procedure law; or (C) compara- ble provisions of the former code of criminal procedure or subsequent law; or (D) SUBDIVISION SEVEN OF SECTION 440.40 OF THE CRIMINAL PROCE- DURE LAW; OR (E) the statute, or application thereof, on which the accu- satory instrument was based violated the constitution of the United States or the state of New York; OR (F) THE CLAIMANT'S CONVICTION WAS VACATED UNDER ANOTHER SECTION OF LAW NOT ENUMERATED IN THIS PARAGRAPH, BUT WHOSE APPLICATION TO CLAIMANT'S CONVICTION INVOLVED FACTS AND CIRCUMSTANCES THAT DIRECTLY SUPPORT CLAIMANT'S ASSERTION OF INNOCENCE; AND PROVIDED THAT, IN CASES WHERE THE CONVICTION MAY HAVE BEEN VACATED ON MORE THAN ONE GROUND, INCLUDING ONE OF THE GROUNDS ENUMERATED IN THIS PARAGRAPH, THE COURT OF CLAIMS SHALL NOT BE BOUND BY A DECISION OF THE CRIMINAL COURT VACATING THE CONVICTION BASED ONLY ON A GROUND NOT ENUMERATED IN THIS PARAGRAPH; and S 20. This act shall take effect November 1, 2011; provided, however, that the amendments to paragraph (a) of subdivision 3 of section 995-c of the executive law, made by section two of this act, shall apply to any person who is convicted of a crime, adjudicated a youthful offender, incarcerated or subject to probation or parole supervision, or subject to a requirement to register as a sex offender, on or after such effec- tive date; provided, further, that the amendments to paragraph (a) of subdivision 4 of section 30.10 of the criminal procedure law, made by section nine of this act, shall apply to offenses where the applicable period of limitation, including any extension of such period of limita- tion pursuant to law in effect before such effective date, has not expired on such effective date; and provided, further, that, sections six, seven and eight of this act shall take effect April 1, 2012, and shall expire and be deemed repealed September 1, 2015.

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