S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        9736--B
                                 I N  A S S E M B L Y
                                   January 20, 2010
                                      ___________
       Introduced  by  M.  of A. ESPAILLAT, POWELL, MENG, CASTRO -- Multi-Spon-
         sored by -- M. of A. BOYLAND, COOK, GIBSON,  GOTTFRIED,  JOHN,  PERRY,
         REILLY,  TOWNS  -- read once and referred to the Committee on Codes --
         committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted  to  said  committee -- again reported from said committee
         with amendments, 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 2010
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  This  act shall be known as the "actual innocence justice
    2  act of 2010".
    3    S 2. Subdivision 1 of section 440.10 of the criminal procedure law  is
    4  amended by adding a new paragraph (i) to read as follows:
    5    (I) THE DEFENDANT IS ACTUALLY INNOCENT OF THE CRIME OR CRIMES OF WHICH
    6  HE  OR SHE WAS CONVICTED. FOR PURPOSES OF THIS PARAGRAPH, A DEFENDANT IS
    7  ACTUALLY INNOCENT WHERE  IT  IS  ESTABLISHED  BY  CLEAR  AND  CONVINCING
    8  EVIDENCE  THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT UNDER
    9  A REASONABLE DOUBT STANDARD AND IN LIGHT OF ALL AVAILABLE EVIDENCE.
   10    S 3. Subdivision 4 of section 440.10 of the criminal procedure law  is
   11  amended to read as follows:
   12    4.    If  the  court grants the motion, it must, except as provided in
   13  subdivision five OF THIS SECTION, vacate the judgment, and must  dismiss
   14  the  accusatory  instrument,  or  order  a new trial, or take such other
   15  action as is appropriate in the circumstances.   IF  THE  DEFENDANT  HAS
   16  ESTABLISHED  BY CLEAR AND CONVINCING EVIDENCE THAT HE OR SHE IS ACTUALLY
   17  INNOCENT, IN THAT NO TRIER OF FACT WOULD HAVE CONVICTED THE DEFENDANT OF
   18  THE OFFENSE OR OFFENSES UNDER A REASONABLE DOUBT STANDARD AND  IN  LIGHT
   19  OF  ALL  AVAILABLE  EVIDENCE,  THE  COURT  SHALL  DISMISS THE ACCUSATORY
   20  INSTRUMENT.
   21    S 4. Section 440.10 of the criminal procedure law is amended by adding
   22  a new subdivision 8 to read as follows:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD14838-07-0
       A. 9736--B                          2
    1    8. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE COURT MUST
    2  ADDRESS THE MERITS OF ANY CLAIM FOR RELIEF WHEN THE CLAIMANT  CAN  SHOW,
    3  IN LIGHT OF ALL AVAILABLE EVIDENCE, THAT THERE EXISTS A REASONABLE PROB-
    4  ABILITY THAT HE OR SHE IS ACTUALLY INNOCENT.
    5    S 5. This act shall take effect immediately.