Requires defendants arrested for a felony to submit a DNA sample and authorizes motion to vacate judgment upon proof of defendant's innocence

Summary of provisions

Section 1 gives a title to the Act (still being determined what that title should be - currently "actual innocence justice act of 2011...title needs to incorporate dna portion)

Section 2 amends the executive law section 995 by adding a new definition of "felony arrestee", which is defined as a person arrested and charged with certain designated felonies.

Section 3 amends the executive law section 995-c to require that felony arrestees provide a DNA sample to jailor detention facility personnel upon booking following arrest.

Section 4 amends the executive law section 995-c to clarify the procedure in which an arrestee who is not convicted of an offense for which DNA is collected may get his or her DNA expunged.

Sections 5-12 amend various provisions of the criminal procedure law dealing with the requirement of taking fingerprints in accordance with 160.10 to also include a requirement fox taking a DNA sample appropriate for DNA testing.

Section 13 adds a new paragraph (j) 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 14 of the bill amends subdivision (4) of section 440.10 of the Criminal Procedure Law to require in certain circumstances that the court dismiss the accusatory instrument.

Section 15 of the bill adds a new paragraph (9) of section 440.10 to require in certain circumstances the court address the merits of any claim for relief.

Section 16 of the bill establishes the effective date.

Existing law

DNA upon arrest is not currently permissible in New York. Under

current law, a DNA sample is collected upon conviction of any felony or specified misdemeanors.

The database, known as the Databank, began operations in 1996, when individuals convicted of homicide and certain sex-related crimes were required to submit a DNA sample. The Databank was expanded in 1999 and again in 2004, but still only required samples from 14 percent of convictions in the state until 2006 when a new law was passed in New York requiring the collection of DNA from all felony and some misdemeanor convictions.

From 1996 to the end of 2007, the database had 4,142 offender hits to crime scene DNA samples. Nearly a third of those came in 2007, the first year after the new 2006 law went into effect expanding the database.

While DNA is often used to find and convict offenders, DNA serves the additional purpose of eliminating suspects or overturning convictions of those wrongly convicted of crimes.

Due to procedural limitations of the criminal procedure law, many convictions are not being considered for

Justification

Carol Nelson was 65 years old on the morning of July 1, 2007. She had two sons, two daughters, and eight grandchildren. She had recently retired as a nurse at St. Joseph's Hospital in Syracuse, New York, where she had been employed for 25 years. While walking during the early morning hours in a suburban Syracuse neighborhood to her granddaughter's house, Carol was hit in the head multiple times, sexually assaulted, strangled and left for dead by Glen Shoop, who had been arrested and charged with rape, sexual assault and unlawful imprisonment of another victim a year earlier. When he murdered Carol, Shoop was awaiting sentencing in the 2006 crime, in which he pleaded guilty to first degree unlawful imprisonment, a felony. Because DNA was not collectible for Shoop's 2006 arrest for rape, as this bill proposes, his DNA was not taken prior to Carol's murder. Had it been, he would have been linked to a forensic profile in New York's DNA database relating to an unsolved 2000 rape at Colonial Laundromat in East Syracuse. With an investigative lead like that, it is almost certain that Shoop would not have been released to murder Carol Nelson pending his sentencing. When Shoop's DNA was finally taken and entered into the DNA database due to the unlawful imprisonment conviction, he was linked to both Carol's murder and the 2000 rape. He received 40 years to life for the combined cases.

This proposed legislation seeks to address the flaw that cost Carol her life by requiring law enforcement to take DNA upon the arrest of individuals for certain felony crimes that have resulted in the largest number of hits against the database in the past.

Since the database's inception, there have been a total of 7,980 hits. In 2008, there were 1,673 hits, a 30 percent increase from 1,285 hits during 2007. Fifty-one percent of all hits since Databank inception occurred during the last two years, subsequent to the passage of legislation that expanded the database to include all felony and some

misdemeanor convictions. Obtaining DNA upon arrest for certain felonies would undoubtedly result in more and earlier hits, thereby solving more crimes and preventing future ones.

New York needs to join 21 other states and the federal government which have already passed laws collecting DNA upon arrest. As of August 2009, the DNA Databank in New York contained DNA samples collected from 330,411 offenders ("offender profile"). There are 28,858 forensic samples in the database, which are DNA samples taken from crime scenes in New York. Nationally, New York's offender profiles represent 4.55 percent of all DNA profiles in the United States while New York's unsolved crimes constitute 10.4 percent of all unsolved crimes in the United States. Requiring the collection of DNA upon arrest for crimes specified in this bill is the way to responsibly increase the DNA Databank and solve some of the hundreds of thousands of crimes with crime scene forensic profiles that go unsolved in this country every day.

Increasing the DNA database has a further purpose of ensuring that people are not wrongfully convicted. Over the past twenty years, 254 DNA exonerations of convicted innocents in the United States have drawn the attention of citizens and legislatures around the country to the phenomenon of wrongful convictions of the innocent. According to the data provided by the Innocence Project, twenty-six, orof those 254 exonerations were in the State of New York.

However, DNA alone is not responsible for the overturning of convictions. The New York State Bar Association's Task Force on Wrongful Convictions recently identified and studied fifty-three "judicial/formal exonerations" over the last twenty-odd years, thirty-one of them non-DNA exonerations. Thirty-nine additional non-DNA exonerations have been identified in preparing this legislation, mainly by examining the results of compensation actions pursuant to Court of Claims Act8-b. Thus, at least ninety-five men and women have been clearly identified in New York as having spent years, sometimes decades, in prison for murders, rapes, and other serious crimes they did not commit. A significant number of other reversals and vacaturs have occurred where there was strong evidence of innocence, but for one reason or another cannot be included in a set of clear-cut "exonerations." Thus wrongful convictions are not a trivial problem in New York. As Judge Lippman recently wrote in Hurrell-Harring v. State: "Wrongful conviction, the ultimate sign of a criminal justice system's breakdown and failure, has been documented in too many cases." 2010 WL 1791000 (N.Y. May 6, 2010).

Many exonerations in New York were achieved through the litigation of CPL §440.10 motions, demonstrating that New York's post-conviction statute is an excellent avenue of collateral relief for many innocent individuals - a good model, in fact, for other states to follow. Yet it has become clear that some state court judges are not providing justice in such cases, often because of their interpretation of the procedural limitations of the current law.

In the case of Marty 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. It is intolerable that any person in New York whose trial has been shown to have led to a manifest injustice should remain in prison on a technicality under state law.

For individuals like Marty Tankleff, 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. This bill is intended to renew and strengthen the authorization of state court judges, despite any and all procedural or other technical obstacles, to re-visit and give a fair hearing to any case that presents to the reasonable mind a serious doubt about factual guilt.

Procedural hurdles to relief have sometimes been overcome in various jurisdictions around the country by way of a "freestanding" claim of actual innocence on constitutional grounds. The Supreme Court has not yet explicitly held that such a claim can be brought under the United States Constitution. As Justice Roberts wrote for a 5-4 majority in DA's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009): "Whether a federal right to be released upon proof of actual innocence exists is an open question." But several state courts have held that such a claim exists under their state constitutions (including Illinois, California, Connecticut, Missouri, New Mexico, and Texas). The New York Court of Appeals has yet to consider the issue directly, although a handful of trial courts have begun to do so and found compelling grounds to recognize a convicted person's right to post-conviction relief based on proof of actual innocence under state law. In 2003, a New York state judge held for the first time that Article I6 of the New York State Constitution prohibits the execution or incarceration of an innocent person and that a free-standing claim of actual innocence is therefore cognizable under 440.10(1) (h). People v. Cole, 1 Misc. 3d 531, 765 N.Y.S. 2d 477 (Sup. Ct., Kings Cty. 2003). In 2009 two other trial court judges held similarly and granted relief on the ground of actual innocence on constitutional grounds under CPL 440.10(1) (h), the movants having shown they were innocent by clear and convincing evidence. People v. Bermudez, 2009 N.Y. Slip Op. 52302U, 25 Misc. 3d 1226A (Sup. Ct., N.Y. Cty., Nov. 9, 2009) i People v. Wheeler-Whichard, 2009 N.Y. Slip Op. 51647(U), (Sup. Ct., Kings Cty., July 30, 2009).

This bill, therefore, provides that a finding of actual innocence is now an appropriate basis for New York courts to overturn a criminal

conviction under a newly added paragraph (i) of CPL § 440.10(1). The judge is directed to grant relief where it is "established by clear and convincing evidence that no trier of fact would have convicted the defendant under a reasonable doubt standard and in light of all available evidence." Thus, the judge is to consider all relevant evidence without regard to trial rules of admissibility. Paragraph (1)(4) is amended to clarify that, as held in Cole, Bermudez, and Wheeler-Whichard, the proper remedy for such a finding is vacatur of the conviction and dismissal of the indictment.

In addition, anew paragraph (8) clarifies that convicted people who can demonstrate a reasonable probability that they are innocent will have the right to challenge their convictions under the statute, notwithstanding any other procedural and other technical provisions of the statute that would have prevented them from doing so. Several states have taken for granted that due process requires them to forgive these "procedural defaults" where a likelihood of innocence is present. See, e.g., Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) Reedy v. Wright, 60 Va. Cir. 18, 26 (Va. Cir. Ct. 2002); State v. Pope, 80 P.3d 1232, 318 Mont. 383 (2003); Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. 2000). This paragraph is intended to provide relief from procedural defaults or other technical requirements in addition to, and independently of, any judicial finding that such relief is required under the Due Process Clause of either the Federal or State Constitutions.

The very purpose and design of CPL § 440.10 is to provide defendants with an opportunity to fully vindicate their rights and to provide a post-conviction court with an opportunity to correct miscarriages of justice. 34 N.Y. Jur. 2d, Criminal Law § 3047. The miscarriage of justice with the greatest call on the Court's conscience is a long prison sentence or execution of a person who is entirely innocent of the crime for which he is being punished. These amendments are intended to require judges to treat claims of actual innocence with the seriousness they warrant, and to permit them to adjudicate reasonable claims of innocence without becoming entangled in legal uncertainties and technicalities.

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.

Legislative history

The combination of DNA upon Arrest and Actual Innocence Act form a new bill.

Fiscal implications

To be determined.

Effective date

This act shall take effect on the 180th day after it shall have become law.