STATE OF NEW YORK ________________________________________________________________________ 8072 IN SENATE January 24, 2022 ___________ Introduced by Sen. CLEARE -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the court of claims act and the tax law, in relation to claims for unjust conviction; to amend the education law, in relation to establishing wrongful conviction recovery scholarships; and to amend the civil service law, in relation to allowing additional cred- its for the wrongfully convicted 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 "wrongful 2 conviction 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 legis- 7 lature finds and declares that innocent persons who have been wrongly 8 convicted of crimes [~~and subsequently imprisoned~~] have been frustrated 9 in 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~~] a preponderance of the evidence that 15 they were unjustly convicted [~~and imprisoned~~] be able to recover damages 16 against the state. In light of the substantial burden of proof that must 17 be carried by such persons, it is the intent of the legislature that the 18 court, in exercising its discretion as permitted by law regarding the 19 weight and admissibility of evidence submitted pursuant to this section, 20 shall, in the interest of justice, give due consideration to difficul- 21 ties of proof caused by the passage of time, the death or unavailability 22 of witnesses, the destruction of evidence or other factors not caused by 23 such persons or those acting on their behalf. 24 2. Any person convicted [~~and subsequently imprisoned~~] for one or more 25 felonies or misdemeanors against the state which he or she did not EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00446-03-2

S. 8072 2 1 commit may, under the conditions hereinafter provided, present a claim 2 for damages against the state. In scheduling court appearances and 3 filing deadlines, the court shall give docket priority at each stage of 4 the proceeding to such claims for damages under this subdivision where 5 the claimant asserts proof of innocence through DNA evidence. Any 6 adjournments granted in the course of such a proceeding should be for as 7 short a time as is practicable. 8 3. In order to present the claim for unjust conviction [~~and imprison-~~ 9 ~~ment~~], claimant must establish by documentary evidence that: 10 (a) he or she has been convicted of one or more felonies or misdemea- 11 nors against the state [~~and subsequently sentenced to a term of impri-~~ 12 ~~sonment, and has served all or any part of the sentence~~]; and 13 (b) (i) he or she has been pardoned upon the ground of innocence of 14 the crime or crimes for which he or she was sentenced and which are the 15 grounds for the complaint; or (ii) his or her judgment of conviction was 16 reversed or vacated, and the accusatory instrument dismissed or, if a 17 new trial was ordered, either he or she was found not guilty at the new 18 trial or he or she was not retried and the accusatory instrument 19 dismissed; provided that the [~~judgement~~] judgment of conviction was 20 reversed or vacated, and the accusatory instrument was dismissed, on any 21 of the following grounds: (A) [~~paragraph (a), (b), (c), (e) or (g) of~~] 22 subdivision one of section 440.10 of the criminal procedure law; or (B) 23 [~~subdivision one (where based upon grounds set forth in item (A) hereof,~~ 24 ~~two, three (where the count dismissed was the sole basis for the impri-~~ 25 ~~sonment complained of) or five of~~] section 470.20 of the criminal proce- 26 dure law; or (C) comparable provisions of the former code of criminal 27 procedure or subsequent law; or (D) the statute, or application thereof, 28 on which the accusatory instrument was based violated the constitution 29 of the United States or the state of New York; and 30 (c) his or her claim is not time-barred by the provisions of subdivi- 31 sion seven of this section. 32 4. The claim shall state facts in sufficient detail to permit the 33 court to find that claimant is likely to succeed at trial in proving 34 that (a) he or she did not commit any of the acts charged in the accusa- 35 tory instrument or his or her acts or omissions charged in the accusato- 36 ry instrument did not constitute a felony or misdemeanor against the 37 state, and (b) he or she did not by his or her own conduct cause or 38 bring about his or her conviction. The claim shall be verified by the 39 claimant. If the court finds after reading the claim that claimant is 40 not likely to succeed at trial, it shall dismiss the claim, either on 41 its own motion or on the motion of the state. 42 5. In order to obtain a judgment in his or her favor, claimant must 43 prove by [~~clear and convincing~~] a preponderance of the evidence that: 44 (a) he or she has been convicted of one or more felonies or misdemea- 45 nors against the state [~~and subsequently sentenced to a term of impri-~~ 46 ~~sonment, and has served all or any part of the sentence~~]; and 47 (b) (i) he or she has been pardoned upon the ground of innocence of 48 the crime or crimes for which he or she was sentenced and which are the 49 grounds for the complaint; or (ii) his or her judgment of conviction was 50 reversed or vacated, and the accusatory instrument dismissed or, if a 51 new trial was ordered, either he or she was found not guilty at the new 52 trial or he or she was not retried and the accusatory instrument 53 dismissed; provided that the [~~judgement~~] judgment of conviction was 54 reversed or vacated, and the accusatory instrument was dismissed, on any 55 of the following grounds: (A) [~~paragraph (a), (b), (c), (e) or (g) of~~] 56 subdivision one of section 440.10 of the criminal procedure law; or (B)

S. 8072 3 1 [~~subdivision one (where based upon grounds set forth in item (A) hereof~~ 2 ~~two, three (where the count dismissed was the sole basis for the impri-~~ 3 ~~sonment complained of) or five of~~] section 470.20 of the criminal proce- 4 dure law; or (C) comparable provisions of the former code of criminal 5 procedure or subsequent law; or (D) the statute, or application thereof, 6 on which the accusatory instrument was based violated the constitution 7 of the United States or the state of New York; and 8 (c) he or she did not commit any of the acts [~~charged in the accusato-~~ 9 ~~ry instrument or his acts or omissions charged in the accusatory instru-~~ 10 ~~ment~~] or omissions for which he or she was convicted or his or her acts 11 or omissions did not constitute a felony or misdemeanor against the 12 state; and 13 (d) he or she did not by his or her own conduct cause or bring about 14 his or her conviction. 15 6. If the court finds that the claimant is entitled to a judgment, it 16 shall award damages in such sum of money as the court determines will 17 fairly and reasonably compensate him or her, provided, if the claimant 18 was incarcerated, such sum shall not be less than an award calculated at 19 a rate of one million dollars per year during which the claimant was 20 incarcerated and was not under sentence for a separate crime. The court 21 may also award reasonable attorneys' fees incurred in the claimant's 22 defense at trial, including any post-trial motions or appeals, in the 23 process of vacating or reversing his or her criminal conviction, and in 24 the pursuit of a claim under this section. 25 7. Any person claiming compensation under this section based on a 26 pardon that was granted before the effective date of this section or the 27 dismissal of an accusatory instrument that occurred before the effective 28 date of the chapter of the laws of two thousand twenty-one that amended 29 this section shall file his or her claim within two years after [~~the~~] 30 such effective date [~~of this section~~]. Any person claiming compensation 31 under this section based on a pardon that was granted on or after the 32 effective date of this section or the dismissal of an accusatory instru- 33 ment that occurred on or after the effective date of the chapter of the 34 laws of two thousand twenty-one that amended this section shall file his 35 or her claim within [~~two~~] three years after the pardon or dismissal. 36 § 3. Subsection (c) of section 612 of the tax law is amended by 37 adding a new paragraph 46 to read as follows: 38 (46) The amount of any damage award amounts received pursuant to 39 section eight-b of the court of claims act and not excludable from 40 federal adjusted gross income. 41 § 4. The education law is amended by adding a new section 668-h to 42 read as follows: 43 § 668-h. Wrongful conviction recovery scholarships. 1. Eligible 44 persons. Notwithstanding subdivisions three and five of section six 45 hundred sixty-one of this article, individuals pursuant to section 46 eight-b of the court of claims act that have been determined to be enti- 47 tled to a judgment for unjust conviction or upon their election any 48 children of an individual having been determined to be entitled to a 49 judgment for unjust conviction shall be eligible to receive a wrongful 50 conviction recovery scholarship. 51 2. Amount. (a) The president shall grant annual scholarships to any 52 person eligible pursuant to subdivision one of this section. Recipients 53 shall be granted annual scholarships if they are attending an institu- 54 tion of the city university of New York or an institution of the state 55 university of New York including the statutory colleges at Cornell, the 56 college of environmental science and forestry at Syracuse and the

S. 8072 4 1 college of ceramics at Alfred. The annual award shall be an amount equal 2 to the tuition charged at such institution provided that, notwithstand- 3 ing any provision of law to the contrary, the tuition charged to award 4 recipients shall not exceed that charged to state resident students 5 attending such institution; the mandatory fees charged at such institu- 6 tion; and the non-tuition cost of attendance at such institution or 7 college, provided that the scholarship shall not exceed an amount that 8 is equal to the total cost of attendance determined for federal Title IV 9 student financial aid purposes, less all other scholarships and grants 10 provided by New York state, other states, the federal government, or 11 other governments, and the amount of educational benefits paid under any 12 program that would duplicate the purposes of this program, provided that 13 any scholarships or grants provided to a recipient by the institution 14 which are intended to fund any portion of the difference between the 15 annual state award and the actual costs of attendance at any such insti- 16 tution shall not be considered to duplicate the purposes of this 17 program. 18 (b) "Non-tuition cost of attendance", as used in this subdivision, 19 shall mean: (i) the actual amount charged by the institution for room 20 and board, and (ii) an allowance for transportation, books and supplies 21 as determined by the president and as approved by the director of the 22 budget, provided that such determination shall be made no later than 23 December first of each year for use in the succeeding academic year. In 24 the event a student does not incur room or board charges at the institu- 25 tion, "non-tuition cost of attendance" shall mean an allowance for room 26 and board as determined by the president and approved by the director of 27 the budget. In determining allowances pursuant to this subparagraph, the 28 president may take into consideration the allowances provided for in the 29 Pell grant program. 30 (c) In no event shall the combination of all student financial aid 31 received by a student exceed a recipient's total cost of attendance at 32 the institution being attended. 33 3. Duration. Awards under this section shall be payable for each of 34 not more than four academic years of undergraduate study or five academ- 35 ic years if a program normally requires five years, as defined by the 36 commissioner pursuant to article thirteen of this title. 37 § 5. The civil service law is amended by adding a new section 85-d to 38 read as follows: 39 § 85-d. Additional credits allowed for the wrongfully convicted. 1. 40 Additional credit authorized. Additional credits shall be allowed to 41 successful claimants under section eight-b of the court of claims act in 42 competitive examinations for original appointment. (a) On all eligible 43 lists resulting from competitive examinations, the names of eligible 44 persons shall be entered in the order of their respective final earned 45 ratings on examinations, with the name of the eligible person with the 46 highest final earned ratings at the head of such list, provided, howev- 47 er, that for the purpose of determining final earned ratings, successful 48 claimants under section eight-b of the court of claims act shall be 49 entitled to receive an additional ten points in a competitive examina- 50 tion for original appointment. 51 (b) Such additional credit shall be added to the final earned rating 52 of such successful claimant after he or she has qualified in the compet- 53 itive examination and shall be granted only at the time of establishment 54 of the resulting eligible list. 55 2. Application for additional credit; proof of eligibility; establish- 56 ment of eligible list. Any candidate, believing himself or herself

S. 8072 5 1 entitled to additional credit in a competitive examination as provided 2 in this section, may make application for such additional credit at any 3 time between the date of his or her application for examination and the 4 date of the establishment of the resulting eligible list. Such candi- 5 dates shall be allowed a period of not less than two months from the 6 date of the filing of his or her application for examination in which to 7 establish by appropriate documentary proof his or her eligibility to 8 receive additional credit under this section. At any time after two 9 months have elapsed since the final date for filing applications for a 10 competitive examination for original appointment, the eligible list 11 resulting from such examination may be established, notwithstanding the 12 fact that a successful claimant who has applied for additional credit 13 has failed to establish his or her eligibility to receive such addi- 14 tional credit. A candidate who fails to establish, by appropriate docu- 15 mentary proof, his or her eligibility to receive additional credit by 16 the time an eligible list is established shall not thereafter be granted 17 additional credit on such eligible list. 18 3. Use of additional credit. (a) Except as otherwise provided in this 19 subdivision, no person who has received a permanent original appointment 20 in the civil service of the state or of any city or civil division ther- 21 eof from an eligible list on which he or she was allowed the additional 22 credit granted by this section as a successful claimant, shall thereaft- 23 er be entitled to any additional credit under this section as a success- 24 ful claimant. 25 (b) Where, at the time of establishment of an eligible list, the posi- 26 tion of a successful claimant on such list has not been affected by the 27 addition of credits granted under this section, the appointment of such 28 successful claimant from such eligible list shall not be deemed to have 29 been made from an eligible list on which he or she was allowed the addi- 30 tional credit granted by this section. 31 (c) If, at the time of appointment from an eligible list, a successful 32 claimant is in the same relative standing among the eligible persons who 33 are willing to accept appointment as if he or she had not been granted 34 the additional credits as provided by this section, his or her appoint- 35 ment from such eligible persons shall not be deemed to have been made 36 from an eligible list on which he or she was allowed such additional 37 credits. 38 (d) Where a successful claimant has been originally appointed from an 39 eligible list on which he or she was allowed such additional credit, but 40 such appointment is thereafter terminated either at the end of the 41 probationary term or by resignation at or before the end of the proba- 42 tionary term, he or she shall not be deemed to have been appointed, as 43 the case may be, from an eligible list on which he or she is allowed 44 additional credit, and such appointment shall not affect his or her 45 eligibility for additional credit in other examinations. 46 4. Withdrawal of application; election to relinquish additional cred- 47 it. An application for additional credit in a competitive examination 48 under this section may be withdrawn by the applicant at any time prior 49 to the establishment of the resulting eligible list. At any time during 50 the term of existence of an eligible list resulting from a competitive 51 examination in which a successful claimant has received the additional 52 credit granted by this section, such successful claimant may elect, 53 prior to permanent original appointment, to relinquish the additional 54 credit theretofore granted to him or her and accept the lower position 55 on such eligible list to which he or she would otherwise have been enti- 56 tled; provided, however, that such election shall thereafter be irrev-

S. 8072 6 1 ocable. Such election shall be in writing and signed by the successful 2 claimant, and transmitted to the department or the appropriate municipal 3 civil service commission. 4 5. Roster. The department and each municipal commission shall estab- 5 lish and maintain in its office a roster of all such successful claim- 6 ants appointed as a result of additional credits granted by this section 7 to positions under its jurisdiction. The appointment of a successful 8 claimant as a result of additional credits shall be void if such 9 successful claimant, prior to such appointment, had been appointed as a 10 result of additional credits granted by this section. 11 § 6. This act shall take effect immediately and shall apply to claims 12 filed on and after such date.

Relates to claims for unjust conviction

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