Permits the admission of new forensic DNA evidence to vacate a judgment in certain circumstances.
BILL NUMBER: S7867
TITLE OF BILL : An act to amend the criminal procedure law, in relation to vacating judgments based upon forensic DNA tests
PURPOSE : The purpose of the bill is to provide a mechanism by which an individual convicted of a crime by a guilty plea could move to vacate the conviction based on new evidence consisting of DNA test results discovered since entry of judgment.
SUMMARY OF PROVISIONS : Section 1 of the bill amends Criminal Procedure Law (CPL) Section 440.10 to provide that at any time after entry of judgment upon a guilty plea, the defendant may move to vacate such judgment upon the ground that new evidence consisting of DNA test results has been discovered since the entry of judgment.
Section 2 of the bill amends CPL §440.20 (1) to make conforming changes.
Section 3 of the bill amends CPL §440.30 (1-a) to provide the procedure by which a defendant may move to vacate a conviction or judgment based on a request for performance of forensic DNA testing.
Section 4 of the bill provides the effective date.
This is one of six bills that are based on the recommendations of the Task Force on Wrongful convictions of the New York State Bar Association. That Task Force was created in 2008, and examined 53 cases where a defendant was wrongfully convicted of a crime and later exonerated. Through this study, the Task Force identified what it found to be the causes of these mistakes. Its report was approved by the Bar Association in 2009, and this bill is intended to address one of the causes that were so identified.
National studies have concluded that post-conviction DNA testing must be available to those who may be wrongfully convicted, regardless of whether their conviction was the result of a trial verdict or a guilty plea, and notwithstanding a confession or a previous unfavorable test result. As The Justice Project has noted, " e xcluding defendants who confessed or pled guilty does not take into account evidence that many false confessions and even some plea bargains are obtained from innocent people." "Nearly a dozen of the more than 200 DNA exonerees in the United States initially pled guilty, and 50 of the first 200 purportedly confessed to crimes that they did not commit." As has now been well-established in various studies on the phenomenon of false confession, any people, particularly mentally and emotionally vulnerable populations, plead guilty even though they are innocent. Faced with a choice between a guilty plea or the prospect of a much higher sentence following a guilty verdict, and unaware of the possibility that scientific evidence can establish their innocence, they take what seems like the lesser of two bad alternatives.
Bad decisions should not irrevocably condemn those who are actually innocent. While New York's statute does not specifically address the availability of post conviction DNA testing for those who have pled guilty, New York appellate courts have construed the statute as foreclosing DNA testing after a guilty plea. People v. Byrdsong, 33A.D.3d175 (2d Dep't 2006), Iv denied 7 N.Y.3d 900(2006); People v. Lebron, 44 A.D.3d 310 (1st Dept 2007), Iv denied 9 N.Y.3d 1007 (2007); People v. Allen, 47 A.D. 3d 543 (1st Dep't 2008). This bill would overturn these decisions to ensure that such testing is available irrespective of whether the conviction was the result of a verdict or a plea.
LEGISLATIVE HISTORY : New Bill.
FISCAL IMPACT : To be determined.
EFFECTIVE DATE : This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 7867 IN SENATE May 18, 2010 ___________Introduced by Sen. SCHNEIDERMAN -- read twice and ordered printed, and when printed to be committed 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 S. 7867 2
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 PROSECUTORS. 7867 3
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.