STATE OF NEW YORK
________________________________________________________________________
5306--A
2017-2018 Regular Sessions
IN ASSEMBLY
February 7, 2017
___________
Introduced by M. of A. AUBRY, BENEDETTO, D'URSO, BARRON, MOSLEY, COLTON,
CRESPO, WILLIAMS, L. ROSENTHAL, McDONOUGH, DE LA ROSA, DICKENS, COOK,
SEPULVEDA, BLAKE, SIMON, HYNDMAN, JAFFEE, PEOPLES-STOKES, HOOPER,
GOTTFRIED, ORTIZ, MORINELLO, SOLAGES, TITONE, SEAWRIGHT -- Multi-Spon-
sored by -- M. of A. CAHILL, HIKIND, M. G. MILLER, WRIGHT -- read
once and referred to the Committee on Judiciary -- recommitted to the
Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the court of claims act and the tax law, in relation to
claims for unjust conviction and imprisonment
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 and may be cited as the "wrongfully
2 convicted recovery act".
3 § 2. Section 8-b of the court of claims act, as added by chapter 1009
4 of the laws of 1984, subdivision 2 as amended by chapter 210 of the laws
5 of 2007, is amended to read as follows:
6 § 8-b. Claims for unjust conviction and imprisonment. 1. The legisla-
7 ture finds and declares that innocent persons who have been wrongly
8 convicted of crimes and subsequently imprisoned have been frustrated in
9 seeking legal redress due to a variety of substantive and technical
10 obstacles in the law and that such persons should have an available
11 avenue of redress over and above the existing tort remedies to seek
12 compensation for damages. The legislature intends by enactment of the
13 provisions of this section that those innocent persons who can demon-
14 strate by clear and convincing evidence that they were unjustly
15 convicted and imprisoned be able to recover damages against the state.
16 In light of the substantial burden of proof that must be carried by such
17 persons, it is the intent of the legislature that the court, in exercis-
18 ing its discretion as permitted by law regarding the weight and admissi-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08758-02-8
A. 5306--A 2
1 bility of evidence submitted pursuant to this section, shall, in the
2 interest of justice, give due consideration to difficulties of proof
3 caused by the passage of time, the death or unavailability of witnesses,
4 the destruction of evidence or other factors not caused by such persons
5 or those acting on their behalf.
6 2. Any person convicted and subsequently imprisoned for one or more
7 felonies or misdemeanors against the state which he or she did not
8 commit may, under the conditions hereinafter provided, present a claim
9 for damages against the state. In scheduling court appearances and
10 filing deadlines, the court shall give docket priority at each stage of
11 the proceeding to such claims for damages under this subdivision where
12 the claimant asserts proof of innocence through DNA evidence. Any
13 adjournments granted in the course of such a proceeding should be for as
14 short a time as is practicable.
15 3. In order to present the claim for unjust conviction and imprison-
16 ment, claimant must establish by documentary evidence that:
17 (a) he or she has been convicted of one or more felonies or misdemea-
18 nors against the state and subsequently sentenced to a term of imprison-
19 ment, and has served all or any part of the sentence; and
20 (b) (i) he or she has been pardoned upon the ground of innocence of
21 the crime or crimes for which he or she was sentenced and which are the
22 grounds for the complaint; or (ii) his or her judgment of conviction was
23 reversed or vacated, and the accusatory instrument dismissed or, if a
24 new trial was ordered, either he or she was found not guilty at the new
25 trial or he or she was not retried and the accusatory instrument
26 dismissed; provided that the [judgement] judgment of conviction was
27 reversed or vacated, and the accusatory instrument was dismissed, on any
28 of the following grounds: (A) paragraph (a), (b), (c), (e) [or], (g) or
29 (g-1) of subdivision one of section 440.10 of the criminal procedure
30 law; or (B) subdivision one (where based upon grounds set forth in [item
31 (A) hereof] clause (A) of this subparagraph), two, three (where the
32 count dismissed was the sole basis for the imprisonment complained of)
33 or five of section 470.20 of the criminal procedure law; or (C) compara-
34 ble provisions of the former code of criminal procedure or subsequent
35 law; or (D) the statute, or application thereof, on which the accusatory
36 instrument was based violated the constitution of the United States or
37 the state of New York; and
38 (c) his or her claim is not time-barred by the provisions of subdivi-
39 sion seven of this section.
40 4. The claim shall state facts in sufficient detail to permit the
41 court to find that claimant is likely to succeed at trial in proving
42 that (a) he or she did not commit any of the acts charged in the accusa-
43 tory instrument or his or her acts or omissions charged in the accusato-
44 ry instrument did not constitute a felony or misdemeanor against the
45 state, and (b) he or she did not by his or her own conduct cause or
46 bring about his or her conviction. The claim shall be verified by the
47 claimant. If the court finds after reading the claim that claimant is
48 not likely to succeed at trial, it shall dismiss the claim, either on
49 its own motion or on the motion of the state.
50 5. In order to obtain a judgment in his or her favor, claimant must
51 prove by clear and convincing evidence that:
52 (a) he or she has been convicted of one or more felonies or misdemea-
53 nors against the state and subsequently sentenced to a term of imprison-
54 ment, and has served all or any part of the sentence; and
55 (b) (i) he or she has been pardoned upon the ground of innocence of
56 the crime or crimes for which he or she was sentenced and which are the
A. 5306--A 3
1 grounds for the complaint; or (ii) his or her judgment of conviction was
2 reversed or vacated, and the accusatory instrument dismissed or, if a
3 new trial was ordered, either he or she was found not guilty at the new
4 trial or he or she was not retried and the accusatory instrument
5 dismissed; provided that the [judgement] judgment of conviction was
6 reversed or vacated, and the accusatory instrument was dismissed, on any
7 of the following grounds: (A) paragraph (a), (b), (c), (e) [or], (g) or
8 (g-1) of subdivision one of section 440.10 of the criminal procedure
9 law; or (B) subdivision one (where based upon grounds set forth in [item
10 (A) hereof] clause (A) of this subparagraph), two, three (where the
11 count dismissed was the sole basis for the imprisonment complained of)
12 or five of section 470.20 of the criminal procedure law; or (C) compara-
13 ble provisions of the former code of criminal procedure or subsequent
14 law; or (D) the statute, or application thereof, on which the accusatory
15 instrument was based violated the constitution of the United States or
16 the state of New York; and
17 (c) he or she did not commit any of the acts he or she was convicted
18 of or his or her acts or omissions charged in the accusatory instrument
19 or [his acts or omissions charged in the accusatory instrument] that any
20 such acts did not constitute a felony or misdemeanor against the state;
21 [and]
22 (d) he or she did not by his or her own conduct cause or bring about
23 his or her conviction; and
24 (e) he or she was not under sentence for a separate crime during the
25 period of time for which compensation is sought.
26 6. If the court finds that the claimant is entitled to a judgment, it
27 shall award damages in [such] the sum of [money] not less than one
28 million dollars for each year of incarceration and such additional
29 damages as the court determines will fairly and reasonably compensate
30 him or her. Such additional damages may include, but need not be limit-
31 ed to the following:
32 (a) compensation for lost wages;
33 (b) reimbursement for legal fees expended for the defense of the
34 convicted person at trial and upon appeal;
35 (c) medical expenses, including therapy;
36 (d) enrollment in the health benefit plan established pursuant to
37 section one hundred sixty-one of the civil service law. The full cost of
38 premium or subscription charges for such coverage shall be paid by the
39 state;
40 (e) educational assistance including:
41 (i) free tuition for the claimant and for any of the claimant's chil-
42 dren for attending a state university or college;
43 (ii) free tuition or reimbursement of tuition for the claimant and for
44 any of the claimant's children for attending a CUNY university or
45 college; and
46 (iii) free tuition at a state funded vocational program and/or job
47 skills program for the claimant and for any of the claimant's children;
48 (f) reimbursement of any child-support arrears that accrued and were
49 paid, including reimbursement to the custodial parent of the amount he
50 or she was receiving prior to the incarceration if it was modified by
51 virtue of the claimant's incarceration;
52 (g) treatment as veterans for purposes of receiving the following
53 benefits:
54 (i) access to the Homes for Veterans Program, which offers fixed-rate
55 mortgages with interest rates one-half percent below the interest rates
56 charged on SONYMA mortgages, with closing cost assistance; and
A. 5306--A 4
1 (ii) eligibility for appointment to non-competitive state employment
2 positions pursuant to sections fifty-five-b and fifty-five-c of the
3 civil service law. Those employees hired under this subparagraph shall
4 be afforded the same opportunity to take promotional examinations as
5 provided to employees in the competitive class.
6 7. Any person claiming compensation under this section based on a
7 pardon that was granted before the effective date of this section or the
8 dismissal of an accusatory instrument that occurred before the effective
9 date of the chapter of the laws of two thousand eighteen that amended
10 this section shall file his or her claim within two years after [the]
11 such effective date [of this section]. Any person claiming compensation
12 under this section based on a pardon that was granted on or after the
13 effective date of this section or the dismissal of an accusatory instru-
14 ment that occurred on or after the effective date of the chapter of the
15 laws of two thousand eighteen that amended this section shall file his
16 or her claim within [two] three years after the pardon or dismissal.
17 8. The claimant shall be entitled to reasonable attorney's fees
18 incurred in the process of vacating or reversing his or her criminal
19 conviction. The claimant may petition the court of claims in seeking
20 reasonable attorney's fees against the state pursuant to this section.
21 Any award of attorney's fees shall be reimbursable by the state.
22 9. Any award of damages pursuant to the provisions of this section
23 shall be exempt from income tax to the extent provided in section thir-
24 teen-a of the tax law.
25 § 3. The tax law is amended by adding a new section 13-a to read as
26 follows:
27 § 13-a. Exemption from taxation for persons wrongfully convicted and
28 imprisoned. Notwithstanding any provision of law to the contrary, damage
29 award amounts received, including accumulated interest, by persons
30 wrongfully convicted and imprisoned as provided in section eight-b of
31 the court of claims act, whether or not includable in income for federal
32 income tax purposes, shall be exempt from all state and local taxes
33 imposed on or measured by income; provided however, that this exemption
34 shall not apply to amounts received from assets acquired with such
35 assets or with the proceeds from the sale of such assets.
36 § 4. This act shall take effect immediately.
