S 6319: Relates to motions to vacate judgment; authorizes filing motions to vacate judgment for a conviction that was subsequently decriminalized; authorizes motions to vacate judgment to be filed at any time after entry of a judgment obtained at trial or by plea; repeals certain provisions relating thereto.

  
  STATE OF NEW YORK ________________________________________________________________________ 6319 2025-2026 Regular Sessions  IN SENATE March 10, 2025 ___________ Introduced by Sens. MYRIE, CLEARE, COMRIE, RIVERA, SALAZAR, SEPULVEDA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law and the judiciary law, in relation to motions to vacate judgment; and to repeal certain provisions of the criminal procedure law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The criminal procedure law is amended by adding two new 2 sections 440.00 and 440.11 to read as follows: 3 § 440.00 Definition. 4 As used in this article, the term "applicant" means a person previous- 5 ly convicted of a crime who is applying for relief under this article. 6 § 440.11 Motion to vacate judgment; change in the law. 7 1. At any time after the entry of a judgment obtained at trial or by 8 plea, the court in which it was entered may, upon motion of the appli- 9 cant, vacate such conviction upon the ground that the applicant was 10 convicted of any offense in the state of New York which has been subse- 11 quently decriminalized and is thus a legal nullity. 12 2. If the court grants a motion under this section, it shall vacate 13 the conviction on the merits, dismiss the accusatory instrument, seal 14 the conviction, and may take such additional action as is appropriate in 15 the circumstances. 16 § 2. Section 440.10 of the criminal procedure law, paragraph (g-1) of 17 subdivision 1 as added by chapter 19 of the laws of 2012, paragraph (h) 18 of subdivision 1, paragraph (a) of subdivision 3 and subdivision 4 as 19 amended and subdivisions 7 and 8 as renumbered by chapter 332 of the 20 laws of 2010, paragraph (i) of subdivision 1 and subdivision 6 as 21 amended by chapter 629 of the laws of 2021, paragraph (j) of subdivision 22 1 as amended by chapter 131 of the laws of 2019, paragraph (k) of subdi- 23 vision 1 as amended by chapter 92 of the laws of 2021, paragraphs (b) EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00248-03-5 
 S. 6319 2 1 and (c) of subdivision 2 as amended by chapter 501 of the laws of 2021, 2 and subdivision 9 as added by section 4 of part OO of chapter 55 of the 3 laws of 2019, is amended to read as follows: 4 § 440.10 Motion to vacate judgment. 5 1. At any time after the entry of a judgment obtained at trial or by 6 plea, the court in which it was entered may, upon motion of the [defend- 7 ant] applicant, vacate such judgment upon the ground that: 8 (a) The court did not have jurisdiction of the action or of the person 9 of the [defendant] applicant; or 10 (b) The judgment was procured by duress, misrepresentation or fraud on 11 the part of the court or a prosecutor or a person acting for or in 12 behalf of a court or a prosecutor; or 13 (c) [Material evidence adduced at a trial] Evidence that was likely 14 relied upon by a fact finder resulting in the judgment at trial or that 15 was likely relied upon by any party as a basis for a plea agreement was 16 false [and was, prior to the entry of the judgment, known by the prose- 17 cutor or by the court to be false]; or 18 (d) [Material evidence adduced by the people at a trial] Evidence that 19 was likely relied upon by a fact finder resulting in the judgment at 20 trial or that was likely relied upon by any party as a basis for a plea 21 agreement was procured in violation of the [defendant's] applicant's 22 rights under the constitution of this state or of the United States; or 23 (e) During the proceedings resulting in the judgment, the [defendant] 24 applicant, by reason of mental disease or defect, was incapable of 25 understanding or participating in such proceedings; or 26 (f) Improper [and prejudicial] conduct not appearing in the record 27 occurred during a trial resulting in the judgment which conduct, if it 28 had appeared in the record, would have [required] made possible a 29 reversal of the judgment upon an appeal therefrom; or 30 (g) New evidence has been discovered [since the entry of a judgment 31 based upon a verdict of guilty after trial, which could not have been 32 produced by the defendant at the trial even with due diligence on his 33 part and which] or become available that, when viewed alone or with 34 other evidence, is of such character as to create a reasonable probabil- 35 ity that had such evidence been received at the trial or discovered 36 prior to trial or plea agreement that the verdict or plea would have 37 been more favorable to the [defendant; provided that a motion based upon 38 such ground must be made with due diligence after the discovery of such 39 alleged new evidence] applicant. Types of new evidence shall include, 40 but not be limited to newly available forensic evidence or evidence that 41 has either been repudiated by the expert who originally provided the 42 opinion at a hearing or trial or that has been undermined by later 43 scientific research or technological advances; or 44 (g-1) [Forensic DNA] In cases involving the forensic testing of 45 evidence performed since the entry of a judgment, [(1) in the case of a 46 defendant convicted after a guilty plea, the court has determined that 47 the defendant has demonstrated a substantial probability that the 48 defendant was actually innocent of the offense of which he or she was 49 convicted, or (2) in the case of a defendant convicted after a trial,] 50 the court has determined that there exists a reasonable probability that 51 the verdict or plea offer would have been more favorable to the [defend- 52 ant] applicant, or the applicant would have rejected the plea offer. 53 (h) The judgment was obtained in violation of a right of the [defend- 54 ant] applicant under the constitution of this state or of the United 55 States, including, but not limited to, a judgment entered, whether upon 56 trial or guilty plea, against an applicant who is actually innocent. An 
 S. 6319 3 1 applicant is actually innocent where the applicant proves by a prepon- 2 derance of the evidence that no reasonable jury of the applicant's peers 3 would have found the applicant guilty beyond a reasonable doubt; or 4 (i) The judgment is a conviction where the [defendant's] applicant's 5 participation in the offense was a result of having been a victim of sex 6 trafficking under section 230.34 of the penal law, sex trafficking of a 7 child under section 230.34-a of the penal law, labor trafficking under 8 section 135.35 of the penal law, aggravated labor trafficking under 9 section 135.37 of the penal law, compelling prostitution under section 10 230.33 of the penal law, or trafficking in persons under the Trafficking 11 Victims Protection Act (United States Code, title 22, chapter 78); 12 provided that 13 (i) official documentation of the [defendant's] applicant's status as 14 a victim of sex trafficking, labor trafficking, aggravated labor traf- 15 ficking, compelling prostitution, or trafficking in persons at the time 16 of the offense from a federal, state or local government agency shall 17 create a presumption that the [defendant's] applicant's participation in 18 the offense was a result of having been a victim of sex trafficking, 19 labor trafficking, aggravated labor trafficking, compelling prostitution 20 or trafficking in persons, but shall not be required for granting a 21 motion under this paragraph; 22 (ii) a motion under this paragraph, and all pertinent papers and docu- 23 ments, shall be confidential and may not be made available to any person 24 or public or private [entity] agency except [where] when specifically 25 authorized by the court; and 26 (iii) when a motion is filed under this paragraph, the court may, upon 27 the consent of the petitioner and all of the involved state [and] or 28 local prosecutorial agencies [that prosecuted each matter], consolidate 29 into one proceeding a motion to vacate judgments imposed by distinct or 30 multiple criminal courts; or 31 (j) The judgment is a conviction for [a class A or unclassified] any 32 misdemeanor entered prior to the effective date of this paragraph and 33 satisfies the ground prescribed in paragraph (h) of this subdivision. 34 There shall be a rebuttable presumption that a conviction by plea to 35 such an offense was not knowing, voluntary and intelligent, based on 36 ongoing collateral consequences, including potential or actual immi- 37 gration consequences, and there shall be a rebuttable presumption that a 38 conviction by verdict constitutes cruel and unusual punishment under 39 section five of article one of the state constitution based on such 40 consequences; or 41 (k) The judgment occurred prior to the effective date of the laws of 42 two thousand [twenty-one] twenty-three that amended this paragraph and 43 is a conviction for an offense as defined in [subparagraphs] subpara- 44 graph (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of 45 section 160.50 of this part, or a misdemeanor under the former article 46 two hundred twenty-one of the penal law, in which case the court shall 47 presume that a conviction by plea for the aforementioned offenses was 48 not knowing, voluntary and intelligent if it has severe or ongoing 49 consequences, including but not limited to potential or actual immi- 50 gration consequences, and shall presume that a conviction by verdict for 51 the aforementioned offenses constitutes cruel and unusual punishment 52 under section five of article one of the state constitution, based on 53 those consequences. The people may rebut these presumptions[.]; or 54 (l) Any offense in the state of New York that an intermediate appel- 55 late court, court of appeals, or United States federal court with juris- 56 diction over New York state law issues has deemed in violation of the 
 S. 6319 4 1 constitution of this state or of the United States, or any other right 2 under state or federal law. 3 2. Notwithstanding the provisions of subdivision one, the court [must] 4 may deny a motion to vacate a judgment when: 5 (a) The ground or issue raised upon the motion was previously deter- 6 mined on the merits upon an appeal from the judgment, unless since the 7 time of such appellate determination there has been a retroactively 8 effective change in the law controlling such issue. However, if all of 9 the evidence currently before the court was not duly considered previ- 10 ously by the court, the court shall grant the motion or order the hear- 11 ing; or 12 (b) The judgment is, at the time of the motion, appealable or pending 13 on appeal, and sufficient facts appear on the record with respect to the 14 ground or issue raised upon the motion to permit adequate review thereof 15 upon such an appeal unless the issue raised upon such motion is ineffec- 16 tive assistance of counsel. This paragraph shall not apply to a motion 17 under paragraph (i), (j), (k) or (l) of subdivision one of this section; 18 or 19 (c) [Although sufficient facts appear on the record of the proceedings 20 underlying the judgment to have permitted, upon appeal from such judg- 21 ment, adequate review of the ground or issue raised upon the motion, no 22 such appellate review or determination occurred owing to the defendant's 23 unjustifiable failure to take or perfect an appeal during the prescribed 24 period or to his or her unjustifiable failure to raise such ground or 25 issue upon an appeal actually perfected by him or her unless the issue 26 raised upon such motion is ineffective assistance of counsel; or 27 (d)] The ground or issue raised relates solely to the validity of the 28 sentence and not to the validity of the conviction. In such case, the 29 court shall deem the motion to have been made pursuant to section 440.20 30 of this article. 31 [3. Notwithstanding the provisions of subdivision one, the court may 32 deny a motion to vacate a judgment when: 33 (a) Although facts in support of the ground or issue raised upon the 34 motion could with due diligence by the defendant have readily been made 35 to appear on the record in a manner providing adequate basis for review 36 of such ground or issue upon an appeal from the judgment, the defendant 37 unjustifiably failed to adduce such matter prior to sentence and the 38 ground or issue in question was not subsequently determined upon appeal. 39 This paragraph does not apply to a motion based upon deprivation of the 40 right to counsel at the trial or upon failure of the trial court to 41 advise the defendant of such right, or to a motion under paragraph (i) 42 of subdivision one of this section; or 43 (b) The ground or issue raised upon the motion was previously deter- 44 mined on the merits upon a prior motion or proceeding in a court of this 45 state, other than an appeal from the judgment, or upon a motion or 46 proceeding in a federal court; unless since the time of such determi- 47 nation there has been a retroactively effective change in the law 48 controlling such issue; or 49 (c) Upon a previous motion made pursuant to this section, the defend- 50 ant was in a position adequately to raise the ground or issue underlying 51 the present motion but did not do so.] 52 (d) Although the court may deny the motion under any of the circum- 53 stances specified in this subdivision, in the interest of justice and 54 for good cause shown it may in its discretion grant the motion if it is 55 otherwise meritorious and vacate the judgment. 
 S. 6319 5 1 [4.] 3. If the court grants the motion, it must, except as provided in 2 subdivision [five] four or [six] five of this section, vacate the judg- 3 ment, and must either: 4 (a) dismiss and seal the accusatory instrument, or 5 (b) order a new trial, or 6 (c) take such other action as is appropriate in the circumstances. 7 [5.] 4. Upon granting the motion upon the ground, as prescribed in 8 paragraph (g) of subdivision one, that newly discovered evidence creates 9 a probability that had such evidence been received at the trial the 10 verdict would have been more favorable to the [defendant] applicant in 11 that the conviction would have been for a lesser offense than the one 12 contained in the verdict, the court may either: 13 (a) Vacate the judgment and order a new trial; or 14 (b) With the consent of the people, modify the judgment by reducing it 15 to one of conviction for such lesser offense. In such case, the court 16 must re-sentence the [defendant] applicant accordingly. 17 [6.] 5. If the court grants a motion under [paragraph (i) or] para- 18 graph [(k)] (h), (i), (j), (k) or (l) of subdivision one of this 19 section, it must vacate the judgment [and] on the merits, dismiss the 20 accusatory instrument, seal the judgment, and may take such additional 21 action as is appropriate in the circumstances. [In the case of a motion 22 granted under paragraph (i) of subdivision one of this section, the 23 court must vacate the judgment on the merits because the defendant's 24 participation in the offense was a result of having been a victim of 25 trafficking. 26 7.] 6. Upon a new trial resulting from an order vacating a judgment 27 pursuant to this section, the indictment is deemed to contain all the 28 counts and to charge all the offenses which it contained and charged at 29 the time the previous trial was commenced, regardless of whether any 30 count was dismissed by the court in the course of such trial, except (a) 31 those upon or of which the [defendant] applicant was acquitted or deemed 32 to have been acquitted, and (b) those dismissed by the order vacating 33 the judgment, and (c) those previously dismissed by an appellate court 34 upon an appeal from the judgment, or by any court upon a previous post- 35 judgment motion. 36 [8.] 7. Upon an order which vacates a judgment based upon a plea of 37 guilty to an accusatory instrument or a part thereof, but which does not 38 dismiss the entire accusatory instrument, the criminal action is, in the 39 absence of an express direction to the contrary, restored to its 40 [prepleading] pre-pleading status and the accusatory instrument is 41 deemed to contain all the counts and to charge all the offenses which it 42 contained and charged at the time of the entry of the plea, except those 43 subsequently dismissed under circumstances specified in paragraphs (b) 44 and (c) of subdivision six. Where the plea of guilty was entered and 45 accepted, pursuant to subdivision three of section 220.30, upon the 46 condition that it constituted a complete disposition not only of the 47 accusatory instrument underlying the judgment vacated but also of one or 48 more other accusatory instruments against the [defendant] applicant then 49 pending in the same court, the order of vacation completely restores 50 such other accusatory instruments; and such is the case even though such 51 order dismisses the main accusatory instrument underlying the judgment. 52 [9.] 8. Upon granting of a motion pursuant to paragraph (j) of subdi- 53 vision one of this section, the court may either: 54 (a) With the consent of the people, vacate the judgment or modify the 55 judgment by reducing it to one of conviction for a lesser offense; or 
 S. 6319 6 1 (b) Vacate the judgment and order a new trial wherein the [defendant] 2 applicant enters a plea to the same offense in order to permit the court 3 to resentence the [defendant] applicant in accordance with the amendato- 4 ry provisions of subdivision one-a of section 70.15 of the penal law. 5 § 3. Section 440.20 of the criminal procedure law, subdivision 1 as 6 amended by chapter 1 of the laws of 1995, is amended to read as follows: 7 § 440.20 Motion to set aside sentence; by [defendant] applicant. 8 1. At any time after the entry of a judgment, the court in which the 9 judgment was entered may, upon motion of the [defendant] applicant, set 10 aside the sentence upon the ground that it was unauthorized, illegally 11 imposed, exceeded the maximum allowed by law, obtained or imposed in 12 violation of the defendant's constitutional rights, or was otherwise 13 invalid as a matter of law. Where the judgment includes a sentence of 14 death, the court may also set aside the sentence upon any of the grounds 15 set forth in paragraph (b), (c), (f), (g) or (h) of subdivision one of 16 section 440.10 as applied to a separate sentencing proceeding under 17 section 400.27, provided, however, that to the extent the ground or 18 grounds asserted include one or more of the aforesaid paragraphs of 19 subdivision one of section 440.10, the court must also apply [subdivi- 20 sions] subdivision two [and three] of section 440.10, other than para- 21 graph [(d)] (c) of [subdivision two of] such [section] subdivision, in 22 determining the motion. In the event the court enters an order granting 23 a motion to set aside a sentence of death under this section, the court 24 must either direct a new sentencing proceeding in accordance with 25 section 400.27 or, to the extent that the defendant cannot be resen- 26 tenced to death consistent with the laws of this state or the constitu- 27 tion of this state or of the United States, resentence the defendant to 28 life imprisonment without parole or to a sentence of imprisonment for 29 the class A-I felony of murder in the first degree other than a sentence 30 of life imprisonment without parole. Upon granting the motion upon any 31 of the grounds set forth in the aforesaid paragraphs of subdivision one 32 of section 440.10 and setting aside the sentence, the court must afford 33 the people a reasonable period of time, which shall not be less than ten 34 days, to determine whether to take an appeal from the order setting 35 aside the sentence of death. The taking of an appeal by the people stays 36 the effectiveness of that portion of the court's order that directs a 37 new sentencing proceeding. 38 2. Notwithstanding the provisions of subdivision one, the court 39 [must] may deny such a motion when the ground or issue raised thereupon 40 was previously determined on the merits upon an appeal from the judgment 41 or sentence, unless since the time of such appellate determination there 42 has been a retroactively effective change in the law controlling such 43 issue. However, if all of the evidence currently before the court was 44 not duly considered previously by the court, the court shall not deny 45 the motion to vacate and instead shall order a hearing or grant the 46 motion. Even if the court has already considered all of the evidence 47 currently before the court, the court in the interest of justice and for 48 good cause shown may grant the motion if it is otherwise meritorious. 49 3. [Notwithstanding the provisions of subdivision one, the court may 50 deny such a motion when the ground or issue raised thereupon was previ- 51 ously determined on the merits upon a prior motion or proceeding in a 52 court of this state, other than an appeal from the judgment, or upon a 53 prior motion or proceeding in a federal court, unless since the time of 54 such determination there has been a retroactively effective change in 55 the law controlling such issue. Despite such determination, however, 
 S. 6319 7 1 the court in the interest of justice and for good cause shown, may in 2 its discretion grant the motion if it is otherwise meritorious. 3 4.] An order setting aside a sentence pursuant to this section does 4 not affect the validity or status of the underlying conviction, and 5 after entering such an order the court must resentence the [defendant] 6 applicant in accordance with the law. 7 § 4. Section 440.30 of the criminal procedure law, subdivisions 1 and 8 1-a as amended by chapter 19 of the laws of 2012 and the opening para- 9 graph of paragraph (b) of subdivision 1 as amended by section 10 of part 10 LLL of chapter 59 of the laws of 2019, is amended to read as follows: 11 § 440.30 Motion to vacate judgment and to set aside sentence; procedure. 12 1. [(a) A] An application for assignment of counsel for a motion to 13 vacate a judgment pursuant to section 440.10 or 440.11 of this article 14 and a motion to set aside a sentence pursuant to section 440.20 of this 15 article must be made in writing by a pro se applicant to the judge or 16 justice who imposed the original sentence and upon reasonable notice to 17 the people. [Upon the motion, a defendant] 18 (a) The court shall assign defense counsel in cases where there is a 19 colorable claim of relief according to this article, in accordance with 20 section seven hundred twenty-two of the county law. For the purpose of 21 this section, a colorable claim is a claim that, taking the facts 22 alleged in the application as true and viewed in a light most favorable 23 to the applicant, would entitle the applicant to relief. 24 (b) If the judge decides not to assign counsel, they shall state the 25 reasons for denying the request for assignment of counsel in writing. 26 (c) If, at the time of such applicant's request for assignment of 27 counsel, the original sentencing judge or justice no longer works in the 28 court in which the original sentence was imposed, then the request shall 29 be randomly assigned to another judge or justice of the court in which 30 the original sentence was imposed. 31 (d) Applicants already represented by counsel, either appointed pursu- 32 ant to section seven hundred twenty-two of the county law or otherwise 33 retained, are not required to file an application for assignment of 34 counsel. 35 2. Upon the request of the applicant or their defense counsel, the 36 court shall order: 37 (a) the people to make available a copy of its file of the case, 38 including any physical evidence in the people's possession and grand 39 jury minutes; 40 (b) the applicant's prior trial and appellate defense counsel to make 41 available their complete files relating to the case; 42 (c) court clerks and probation departments to make available the court 43 files or probation records relating to the case; and 44 (d) any law enforcement agency involved with the case to turn over its 45 files of the case, including police reports, witness statements, 46 evidence vouchers, or any other relevant records or evidence at its 47 disposal. 48 The court shall further ensure that any disclosure of evidence or 49 property ordered pursuant to this subdivision may be subject to a 50 protective order as defined in section 245.70 of this part, where appro- 51 priate. 52 Nothing in this section shall preclude the court from conducting an in 53 camera inspection of evidence and issuing a protective order pursuant to 54 section 245.70 of this part at the request of the prosecution or 55 defense. 
 S. 6319 8 1 3. (a) An applicant who is in a position adequately to raise more than 2 one ground should raise every such ground upon which [he or she intends] 3 they intend to challenge the judgment or sentence. If the motion is 4 based upon the existence or occurrence of facts, the motion papers 5 [must] may contain sworn allegations thereof, whether by the [defendant] 6 applicant or by another person or persons. Such sworn allegations may be 7 based upon personal knowledge of the affiant or upon information and 8 belief, provided that in the latter event the affiant must state the 9 sources of such information and the grounds of such belief. The [defend- 10 ant] applicant may further submit documentary evidence or information 11 supporting or tending to support the allegations of the moving papers. 12 (b) The people may file with the court, and in such case must serve a 13 copy thereof upon the [defendant] applicant or [his or her] their coun- 14 sel, if any, an answer denying or admitting any or all of the allega- 15 tions of the motion papers, and may further submit documentary evidence 16 or information refuting or tending to refute such allegations. 17 (c) After all papers of both parties have been filed, and after all 18 documentary evidence or information, if any, has been submitted, the 19 court must consider the same for the purpose of ascertaining whether the 20 motion is determinable without a hearing to resolve questions of fact. 21 [(b) In conjunction with the filing or consideration of a motion to 22 vacate a judgment pursuant to section 440.10 of this article by a 23 defendant convicted after a trial, in cases where the court has ordered 24 an evidentiary hearing upon such motion, the court may order that the 25 people produce or make available for inspection property in its 26 possession, custody, or control that was secured in connection with the 27 investigation or prosecution of the defendant upon credible allegations 28 by the defendant and a finding by the court that such property, if 29 obtained, would be probative to the determination of defendant's actual 30 innocence, and that the request is reasonable. The court shall deny or 31 limit such a request upon a finding that such a request, if granted, 32 would threaten the integrity or chain of custody of property or the 33 integrity of the processes or functions of a laboratory conducting DNA 34 testing, pose a risk of harm, intimidation, embarrassment, reprisal, or 35 other substantially negative consequences to any person, undermine the 36 proper functions of law enforcement including the confidentiality of 37 informants, or on the basis of any other factor identified by the court 38 in the interests of justice or public safety. The court shall further 39 ensure that any property produced pursuant to this paragraph is subject 40 to a protective order, where appropriate. The court shall deny any 41 request made pursuant to this paragraph where: 42 (i) (1) the defendant's motion pursuant to section 440.10 of this 43 article does not seek to demonstrate his or her actual innocence of the 44 offense or offenses of which he or she was convicted that are the 45 subject of the motion, or (2) the defendant has not presented credible 46 allegations and the court has not found that such property, if obtained, 47 would be probative to the determination of the defendant's actual inno- 48 cence and that the request is reasonable; 49 (ii) the defendant has made his or her motion after five years from 50 the date of the judgment of conviction; provided, however, that this 51 limitation period shall be tolled for five years if the defendant is in 52 custody in connection with the conviction that is the subject of his or 53 her motion, and provided further that, notwithstanding such limitation 54 periods, the court may consider the motion if the defendant has shown: 55 (A) that he or she has been pursuing his or her rights diligently and 56 that some extraordinary circumstance prevented the timely filing of the 
 S. 6319 9 1 motion; (B) that the facts upon which the motion is predicated were 2 unknown to the defendant or his or her attorney and could not have been 3 ascertained by the exercise of due diligence prior to the expiration of 4 the statute of limitations; or (C) considering all circumstances of the 5 case including but not limited to evidence of the defendant's guilt, the 6 impact of granting or denying such motion upon public confidence in the 7 criminal justice system, or upon the safety or welfare of the community, 8 and the defendant's diligence in seeking to obtain the requested proper- 9 ty or related relief, the interests of justice would be served by 10 considering the motion; 11 (iii) the defendant is challenging a judgment convicting him or her of 12 an offense that is not a felony defined in section 10.00 of the penal 13 law; or 14 (iv) upon a finding by the court that the property requested in this 15 motion would be available through other means through reasonable efforts 16 by the defendant to obtain such property. 17 1-a.] 4. (a) [(1)] Where the [defendant's] applicant's motion requests 18 the performance of a forensic DNA test on specified evidence, and upon 19 the court's determination that any evidence containing deoxyribonucleic 20 acid ("DNA") was secured in connection with the trial or the plea 21 resulting in the judgment, the court shall grant the application for 22 forensic DNA testing of such evidence upon its determination that [if a] 23 had the DNA test [had] results been [conducted on such evidence, and if 24 the results had been admitted in the trial resulting in the judgment,] 25 available at the time of trial or plea, there [exists] is a reasonable 26 probability that the verdict would have been more favorable to the 27 [defendant] applicant. 28 [(2) Where the defendant's motion for forensic DNA testing of speci- 29 fied evidence is made following a plea of guilty and entry of judgment 30 thereon convicting him or her of: (A) a homicide offense defined in 31 article one hundred twenty-five of the penal law, any felony sex offense 32 defined in article one hundred thirty of the penal law, a violent felony 33 offense as defined in paragraph (a) of subdivision one of section 70.02 34 of the penal law, or (B) any other felony offense to which he or she 35 pled guilty after being charged in an indictment or information in supe- 36 rior court with one or more of the offenses listed in clause (A) of this 37 subparagraph, then the court shall grant such a motion upon its determi- 38 nation that evidence containing DNA was secured in connection with the 39 investigation or prosecution of the defendant, and if a DNA test had 40 been conducted on such evidence and the results had been known to the 41 parties prior to the entry of the defendant's plea and judgment thereon, 42 there exists a substantial probability that the evidence would have 43 established the defendant's actual innocence of the offense or offenses 44 that are the subject of the defendant's motion; provided, however, that: 45 (i) the court shall consider whether the defendant had the opportunity 46 to request such testing prior to entering a guilty plea, and, where it 47 finds that the defendant had such opportunity and unjustifiably failed 48 to do so, the court may deny such motion; and 49 (ii) a court shall deny the defendant's motion for forensic DNA test- 50 ing where the defendant has made his or her motion more than five years 51 after entry of the judgment of conviction; except that the limitation 52 period may be tolled if the defendant has shown: (A) that he or she has 53 been pursuing his or her rights diligently and that some extraordinary 54 circumstance prevented the timely filing of the motion for forensic DNA 55 testing; (B) that the facts upon which the motion is predicated were 56 unknown to the defendant or his or her attorney and could not have been 
 S. 6319 10 1 ascertained by the exercise of due diligence prior to the expiration of 2 this statute of limitations; or (C) considering all circumstances of the 3 case including but not limited to evidence of the defendant's guilt, the 4 impact of granting or denying such motion upon public confidence in the 5 criminal justice system, or upon the safety or welfare of the community, 6 and the defendant's diligence in seeking to obtain the requested proper- 7 ty or related relief, the interests of justice would be served by toll- 8 ing such limitation period.] 9 (b) Where the applicant's motion for relief requests the performance 10 of any other testing of forensic evidence or any physical evidence 11 secured in the case, the court shall grant the application for testing 12 of such evidence, upon its determination that had the results of testing 13 of forensic or other physical evidence been available at the time of 14 trial or plea, there is a reasonable probability that the verdict would 15 have been more favorable to the applicant. 16 (c) (i) In conjunction with the filing of a motion under this subdivi- 17 sion, the court may direct the people to provide the [defendant] appli- 18 cant and their counsel with information in the possession of the people 19 concerning the current physical location of the specified evidence and 20 if the specified evidence no longer exists or the physical location of 21 the specified evidence is unknown, a representation to that effect and 22 information and documentary evidence in the possession of the people 23 concerning the last known physical location of such specified evidence. 24 (ii) If there is a finding by the court that the specified evidence no 25 longer exists or the physical location of such specified evidence is 26 unknown, [such information in and of itself shall not be a factor from 27 which any inference unfavorable to the people may be drawn by the court 28 in deciding a motion under this section] the court may grant the appli- 29 cant's motion and vacate the judgment upon a finding by the court that 30 such evidence is unavailable due to malfeasance or neglect. 31 (iii) The court, on motion of the [defendant] applicant, may also 32 issue a subpoena duces tecum directing a public or private hospital, 33 laboratory or other entity to produce such specified evidence in its 34 possession and/or information and documentary evidence in its possession 35 concerning the location and status of such specified evidence. 36 [(c)] (d) In response to a motion under this paragraph, upon notice to 37 the parties and to the entity required to perform the search the court 38 may order an entity that has access to the combined DNA index system 39 ("CODIS") or its successor system to compare a DNA profile obtained from 40 probative biological material gathered in connection with the investi- 41 gation or prosecution of the [defendant] applicant against DNA databanks 42 by keyboard searches, or a similar method that does not involve upload- 43 ing, upon a court's determination that (1) such profile complies with 44 federal bureau of investigation or state requirements, whichever are 45 applicable and as such requirements are applied to law enforcement agen- 46 cies seeking such a comparison, and that the data meet state DNA index 47 system and/or national DNA index system criteria as such criteria are 48 applied to law enforcement agencies seeking such a comparison and (2) if 49 such comparison had been conducted, [and if the results had been admit- 50 ted in the trial resulting in the judgment,] a reasonable probability 51 exists that the verdict would have been more favorable to the [defend- 52 ant, or in a case involving a plea of guilty, if the results had been 53 available to the defendant prior to the plea, a reasonable probability 54 exists that the conviction would not have resulted] applicant. For 55 purposes of this subdivision, a "keyboard search" shall mean a search of 
 S. 6319 11 1 a DNA profile against the databank in which the profile that is searched 2 is not uploaded to or maintained in the databank. 3 [2. If it appears by conceded or uncontradicted allegations of the 4 moving papers or of the answer, or by unquestionable documentary proof, 5 that there are circumstances which require denial thereof pursuant to 6 subdivision two of section 440.10 or subdivision two of section 440.20, 7 the court must summarily deny the motion. If it appears that there are 8 circumstances authorizing, though not requiring, denial thereof pursuant 9 to subdivision three of section 440.10 or subdivision three of section 10 440.20, the court may in its discretion either (a) summarily deny the 11 motion, or (b) proceed to consider the merits thereof.] 12 [3.] 5. Upon considering the merits of the motion, the court must 13 grant it without conducting a hearing and vacate the judgment or set 14 aside the sentence, as the case may be, if: 15 (a) The moving papers allege a ground constituting legal basis for the 16 motion; and 17 (b) Such ground, if based upon the existence or occurrence of facts, 18 is supported by sworn allegations thereof; and 19 (c) The sworn allegations of fact essential to support the motion are 20 either conceded by the people to be true or are conclusively substanti- 21 ated by unquestionable documentary proof. 22 [4.] 6. Upon considering the merits of the motion, the court may deny 23 it without conducting a hearing if: 24 (a) The moving papers do not allege any ground constituting legal 25 basis for the motion; or 26 (b) [The motion is based upon the existence or occurrence of facts and 27 the moving papers do not contain sworn allegations substantiating or 28 tending to substantiate all the essential facts, as required by subdivi- 29 sion one; or 30 (c)] An allegation of fact essential to support the motion is conclu- 31 sively refuted by unquestionable documentary proof; or 32 [(d)] (c) An allegation of fact essential to support the motion (i) is 33 contradicted by a court record or other official document[, or is made 34 solely by the defendant and is unsupported by any other affidavit or 35 evidence,] and (ii) under these and all the other circumstances attend- 36 ing the case, there is no reasonable possibility that such allegation is 37 true. 38 [5.] 7. If the court does not determine the motion pursuant to [subdi- 39 visions two, three or four] subdivision five or six of this section, it 40 must conduct a hearing and make findings of fact essential to the deter- 41 mination thereof. The [defendant] applicant has a right to be present at 42 such hearing but may waive such right in writing. If [he] the applicant 43 does not so waive it and if [he is] they are confined in a prison or 44 other institution of this state, the court must cause [him] them to be 45 produced at such hearing. 46 [6.] 8. At such a hearing, the [defendant] applicant has the burden of 47 proving by a preponderance of the evidence every fact essential to 48 support the motion. At the hearing, either party shall receive a daily 49 copy of the hearing minutes, upon request. 50 [7.] 9. Notwithstanding any other provision of this section, when the 51 applicant raises a colorable claim of relief pursuant to this article, 52 the court shall not summarily deny the motion on the ground that the 53 applicant previously moved for relief under this article. 54 10. Regardless of whether a hearing was conducted, the court, upon 55 determining the motion, must set forth on the record its findings of 56 fact, its conclusions of law and the reasons for its determination. 
 S. 6319 12 1 § 5. Subdivision 4 of section 450.10 of the criminal procedure law, as 2 amended by chapter 671 of the laws of 1971 and as renumbered by chapter 3 516 of the laws of 1986, is amended to read as follows: 4 4. An order, entered pursuant to [section 440.40, setting aside a 5 sentence other than one of death, upon motion of the People] article 6 four hundred forty of this title, shall be authorized to an intermediate 7 appellate court as a matter of right. 8 § 6. Subdivision 5 of section 450.10 of the criminal procedure law is 9 REPEALED. 10 § 7. Section 216 of the judiciary law is amended by adding a new 11 subdivision 7 to read as follows: 12 7. The chief administrator of the courts shall collect data and report 13 every year in relation to applications and motions filed pursuant to 14 article four hundred forty of the criminal procedure law, broken down by 15 each section of such article to include motions filed pursuant to 16 sections 440.10, 440.20, 440.40, 440.46, 440.46-a, and 440.47 of the 17 criminal procedure law. Information to be collected and disclosed shall 18 include the raw number of both applications and/or motions filed in each 19 county and on appeal in each judicial department. Information shall 20 include the top conviction charge for each application or motion; when 21 pro se applicants request assignment of counsel pursuant to subdivision 22 two of section 440.30 of the criminal procedure law, whether or not 23 counsel was assigned; the outcome of each motion filed, whether denied 24 without hearing, denied with hearing, vacatur granted, or other; and the 25 average length of time motion under article four hundred forty of the 26 criminal procedure law remains pending for each county. Such report 27 shall aggregate the data collected by county and judicial department. 28 The data shall be aggregated in order to protect the identity of indi- 29 vidual applicants. The report shall be released publicly and published 30 on the websites of the office of court administration and the division 31 of criminal justice services. The first report shall be published twelve 32 months after this subdivision shall have become a law, and shall include 33 data from the first six months following the effective date of this 34 subdivision. Reports for subsequent periods shall be published annually 35 thereafter. 36 § 8. Severability. If any provision of this act, or any application of 37 any provision of this act, is held to be invalid, that shall not affect 38 the validity or effectiveness of any other provision of this act, or of 39 any other application of any provision of this act, which can be given 40 effect without that provision or application; and to that end, the 41 provisions and applications of this act are severable. 42 § 9. This act shall take effect on the sixtieth day after it shall 43 have become a law.