Bill S49A-2013

Establishes the actual innocence justice act 2014

Establishes the actual innocence justice act of 2014; clarifies that convicted persons who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the law, notwithstanding any other procedural or technical provisions of law that would have prevented them from doing so.



  • Jan 23, 2014: PRINT NUMBER 49A
  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES



TITLE OF BILL: An act to amend the criminal procedure law, in relation to establishing the actual innocence justice act of 2014


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.


Section one of the bill entitles the act the "Actual Innocence Justice Act of 2014".

Section two of the bill adds a new paragraph (j) 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 amends subdivision (4) of section 440.10 of the Criminal Procedure Law to require in certain circumstances that the court dismiss the accusatory instrument.

Section four of the bill adds a new paragraph (8) of section 440.10 to require in certain circumstances the court address the merits of any claim for relief.

Section five of the bill establishes the effective date.


Over the past twenty years, 284 DNA exonerations of convicted innocents in the United States have drawn the attention of citizens and legislatures around the country to the phenomenon of wrongful convictions of the innocent. According to the data provided by the Innocence Project, twenty-six, or nearly 10%, of those 284 exonerations were in the State of New York. In addition, the New York State Bar Association's Task Force on Wrongful Convictions recently identified and studied fifty-three "judicial/formal exonerations" over the last twenty-odd years, thirty-one of them non-DNA exonerations. Thirty-nine additional non-DNA exonerations have been identified in preparing this legislation, mainly by examining the results of compensation actions pursuant to Court of Claims Act § 8-b. Thus, at least ninety-five men and women have been clearly identified in New York as having spent years, sometimes decades, in prison for murders, rapes, and other serious crimes they did not commit. A significant number of other reversals and vacaturs have occurred where there was strong evidence of innocence, but for one reason or another cannot be included in a set of clear-cut "exonerations." Thus wrongful convictions are not a trivial problem in New York. As Judge Lippman recently wrote in Hurrell-Harring v. State: "Wrongful conviction, the ultimate sign of a criminal justice system's breakdown and failure, has been documented in too many cases." 2010 WL 1791000 (N.Y. May 6, 2010).

Many exonerations in New York were achieved through the litigation of CPL § 440.10 motions, demonstrating that New York's post-conviction statute is an excellent avenue of collateral relief for many innocent individuals - a good model, in fact, for other states to follow. Yet it has become clear that some state court judges are not providing justice in such cases, often because of their interpretation of the procedural limitations of the current law. In the case of Marty Tankleff, the lower court denied Tankleffs motion to vacate judgment based on 440.10(1)(g) and 440.10(1)(h). Tankleffs 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, Tankleffs wrongful conviction would most likely never have been heard due to the limited nature of the few remedies available to him. It is intolerable that any person in New York whose trial has been shown to have led to a manifest injustice should remain in prison on a technicality under state law.

For individuals like Marty Tankleff, 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. This bill is intended to renew and strengthen the authorization of state court judges, despite any and all procedural or other technical obstacles, to re-visit and give a fair hearing to any case that presents to the reasonable mind a serious doubt about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various jurisdictions around the country by way of a "freestanding" claim of actual innocence on constitutional grounds. The Supreme Court has not yet explicitly held that such a claim can be brought under the United States Constitution. As Justice Roberts wrote for a 5-4 majority in DA's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a federal right to be released upon proof of actual innocence exists is an open question." But several state courts have held that such a claim exists under their state constitutions (including Illinois, California, Connecticut, Missouri, New Mexico, and Texas). The New York Court of Appeals has yet to consider the issue directly, although a handful of trial courts have begun to do so and found compelling grounds to recognize a convicted person's right to post-conviction relief based on proof of actual innocence under state law. In 2003, a New York state judge held for the first time that Article I § 6 of the New York State Constitution prohibits the execution or incarceration of an innocent person and that a freestanding claim of actual innocence is therefore cognizable under 440.10(1) (h). People v. Cole, 1 Misc. 3d 531, 765 N. Y.S. 2d 477 (Sup. Ct., Kings Cty. 2003). In 2009 two other trial court judges held similarly and granted relief on the ground of actual innocence on constitutional grounds under CPL

440.10(1) (h), the movants having shown they were innocent by clear and convincing evidence. People v. Bermudez, 2009 N.Y. Slip Op. 52302U, 25 Misc. 3d 1226A (Sup. Ct., N.Y. Cty., Nov. 9, 2009) People v. Wheeler-Whichard, 2009 N.Y. Slip Op. 51647(U), (Sup. Ct., Kings Cty., July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is now an appropriate basis for New York courts to overturn a criminal conviction under a newly added paragraph (1) of CPL § 440.10(1), The judge is directed to grant relief where it is "established by clear and convincing evidence that no trier of fact would have convicted the defendant under a reasonable doubt standard and in light of all available evidence." Thus, the judge is to consider all relevant evidence without regard to trial rules of admissibility. Paragraph (1)(4) is amended to clarify that, as held in Cole, Bermudez, and Wheeler-Whichard, the proper remedy for such a finding is vacatur of the conviction and dismissal of the indictment.

In addition, a new paragraph (8) clarifies that convicted people who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the statute, notwithstanding any other procedural and other technical provisions of the statute that would have prevented them from doing so. Several states have taken for granted that due process requires them to forgive these "procedural defaults" where a likelihood of innocence is present. See, e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) Reedy v. Wright, 60 Va. Cir. 18, 26 (Va. Cir. Ct. 2002) i State v. Pope, 80 P.3d 1232, 318 Mont. 383 (2003); Clay v. Doiluire, 37 S.W.3d 214, 217 (Mo. 2000). This paragraph is intended to provide relief from procedural defaults or other technical requirements in addition to, and independently of, any judicial finding that such relief is required under the Due Process Clause of either the Federal or State Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants with an opportunity to fully vindicate their rights and to provide a post-conviction court with an opportunity to correct miscarriages of justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of justice with the greatest call on the Court's conscience is a long prison sentence or execution of a person who is entirely innocent of the crime for which he is being punished. These amendments are intended to require judges to treat claims of actual innocence with the seriousness they warrant, and to permit them to adjudicate reasonable claims of innocence without becoming entangled in legal uncertainties and technicalities.

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.


2011-12: S.729-A 2009-10: S.6234-C Referred to Codes and Advanced to 3rd Reading




This act shall take effect immediately.


STATE OF NEW YORK ________________________________________________________________________ 49--A 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. PERALTA, ESPAILLAT -- read twice and ordered print- ed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to establishing the actual innocence justice act of 2014 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known as the "actual inno- cence justice act of 2014". S 2. Subparagraph (ii) of paragraph (i) of subdivision 1 of section 440.10 of the criminal procedure law, as added by chapter 332 of the laws of 2010, is amended and a new paragraph (j) is added to read as follows: (ii) official documentation of the defendant's status as a victim of sex trafficking or trafficking in persons at the time of the offense from a federal, state or local government agency shall create a presump- tion that the defendant's participation in the offense was a result of having been a victim of sex trafficking or trafficking in persons, but shall not be required for granting a motion under this paragraph[.]; OR (J) 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 IT IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT UNDER A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE. S 3. Subdivision 4 of section 440.10 of the criminal procedure law, as amended by chapter 332 of the laws of 2010, is amended to read as follows:
4. If the court grants the motion, it must, except as provided in subdivision five or six of this section, vacate the judgment, and must dismiss the accusatory instrument, or order a new trial, or take such other action as is appropriate in the circumstances. IF THE DEFENDANT HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTU- ALLY INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFEND- ANT OF THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE, THE COURT SHALL DISMISS THE ACCUSATORY INSTRUMENT. S 4. Section 440.10 of the criminal procedure law is amended by adding a new subdivision 9 to read as follows: 9. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST ADDRESS THE MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT CAN SHOW, IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB- ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT. S 5. This act shall take effect immediately.


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