This bill has been amended

Bill S6234-2009

Establishes the actual innocence justice act 2009

Establishes the actual innocence justice act of 2010; 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 6, 2010: REFERRED TO CODES
  • Oct 19, 2009: REFERRED TO RULES




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


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 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.


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.


This is a new bill.



EFFECTIVE DATE : This act shall take effect immediately.



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