Monday, September 10, 2018
As the Court of Appeals of New York noted in its recent opinion in People v. Tiger:
In 2012, the legislature added CPL 440.10 (1) (g-1) to allow a specific form of newly discovered evidence — DNA evidence — as a basis to collaterally attack a guilty plea at the postconviction stage. Significantly, that provision is the only one in CPL 440.10 that specifically refers to actual innocence — requiring a factual demonstration that is not necessary for the granting of relief under CPL 440.10 (1) (g). In recognition of the import of a guilty plea conviction that was constitutionally obtained, the legislature enacted different standards that must be satisfied as between a defendant who has pleaded guilty and one who has been convicted upon a verdict after trial. Under CPL 440.10 (1) (g-1), based on DNA results, a defendant who has pleaded guilty must demonstrate a "substantial probability" that he or she is actually innocent, whereas a defendant convicted after trial is held to the lesser standard that there is a "reasonable probability" that the verdict would have been more favorable (CPL 440.10  [g-1]). To be sure, the fact that the legislature has recently carved out a basis to vacate a guilty plea where new evidence of DNA demonstrates actual innocence lends support to the conclusion that CPL 440.10 does not contemplate a separate constitutional claim to vacate a guilty plea based on new evidence as to guilt or innocence (see e.g. Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394  ["an inference must be drawn that what is omitted or not included was intended to be omitted and excluded"] [citation and quotation marks omitted]). Indeed, the narrow exception for new DNA evidence as a basis to vacate a conviction in plea cases is undoubtedly due to the recognition of the exceptional nature of DNA evidence as a reliable scientific tool to conclusively determine the identity of an assailant.
Under this amendment, pleading defendants can thus seek postconviction DNA testing in New York. Perversely, however, the court in People v. Tiger concluded that pleading defendants in New York cannot seek relief based upon non-DNA evidence of actual innocence.