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New York Criminal Procedure Law Section 440

THE 440 MOTION IN NEW YORK

CPL Section 440 allows a defendant to move to vacate a judgment even after his appeal is over. However, this section is not a substitute for a full appeal and is usually not used to raise errors that appear in the record.  In a 440 one can raise errors which are based on off-the-record facts and, and in some cases, on-the-record errors can be raised if there is a good reason for the failure to appeal. The 440 motion must be filed after sentencing and can be done before an appeal is perfected or after an appeal is perfected. In general, the procedural requirements of a 440 motion are complicated.  I have done over 100 440 motions in my career and am well versed in how they are litigated.  In many cases, an evidentiary hearing on the motion is ordered and testimony is taken from witnesses, especially the defendant and the lawyer who represented the client when the conviction was entered. It should be noted that if one loses a 440 motion, you cannot just file a notice of appeal.  One has to file a motion with the appellate court for permission to file a notice of appeal.  Many lawyers call this area of practice: “Post-Conviction Relief” and there are some attorneys that use the initials “PCR” for this type of action.

For your information, the exact language of the 440 law is provided below:

CPL § 440.10  Motion to vacate  judgment.

1. At any time after the entry of a  judgment, the court in which it was entered may, upon motion of the defendant,  vacate such judgment upon the ground that: (a) The court did not have jurisdiction of the action or of the person of the defendant; or (b) The  judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or (c) Material evidence adduced at a trial resulting in the  judgment was false and was, prior to the entry of the judgment, known by the  prosecutor or by the court to be false; or (d) Material evidence adduced by the  people at a trial resulting in the judgment was procured in violation of the  defendant’s rights under the constitution of this state or of the United States;  or (e) During the proceedings resulting in the judgment, the defendant, by  reason of mental disease or defect, was incapable of understanding or  participating in such proceedings; or (f) Improper and prejudicial conduct not  appearing in the record occurred during a trial resulting in the judgment which  conduct, if it had appeared in the record, would have required a reversal of the  judgment upon an appeal therefrom; or (g) New evidence has been discovered since  the entry of a judgment based upon a verdict of guilty after trial, which could  not have been produced by the defendant at the trial even with due diligence on  his part and which is of such character as to create a probability that had such  evidence been received at the trial the verdict would have been more favorable  to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; or (h) The  judgment was obtained in violation of a right of the defendant under the  constitution of this state or of the United States.

2. Notwithstanding the provisions of subdivision one, the court must deny a   motion to vacate a judgment when: (a) The ground or issue raised upon the motion  was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively  effective change in the law controlling such issue; or (b) The judgment is, at  the time of the motion, appealable or pending on appeal, and sufficient facts  appear on the record with respect to the ground or issue raised upon the motion  to permit adequate review thereof upon such an appeal; or (c) Although  sufficient facts appear on the record of the proceedings underlying the judgment  to have permitted, upon appeal from such judgment, adequate review of the ground  or issue raised upon the motion, no such appellate review or determination  occurred owing to the defendant’s unjustifiable failure to take or perfect an  appeal during the prescribed period or to his unjustifiable failure to raise  such ground or issue upon an appeal actually perfected by him; or (d) The ground or issue raised relates solely to the validity of the sentence and not to the  validity of the conviction.

3. Notwithstanding the provisions of subdivision one, the court may deny a  motion to vacate a judgment when: (a) Although facts in support of the ground or  issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis  for review of such ground or issue upon an appeal from the judgment, the  defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. This  paragraph does not apply to a motion based upon deprivation of the right to  counsel at the trial or upon failure of the trial court to advise the defendant of such right; or (b) The ground or issue raised upon the motion was previously  determined on the merits upon a prior motion or proceeding in a court of this  state, other than an appeal from the judgment, or upon a motion or proceeding in  a federal court; unless since the time of such determination there has been a  retroactively effective change in the law controlling such issue; or (c) Upon a  previous motion made pursuant to this section, the defendant was in a position  adequately to raise the ground or issue underlying the present motion but did  not do so. Although the court may deny the motion under any of the circumstances  specified in this subdivision, in the interest of justice and for good cause  shown it may in its discretion grant the motion if it is otherwise meritorious  and vacate the judgment.

4. If the court grants the motion, it must, except as provided in subdivision  five, vacate the judgment, and must dismiss the accusatory instrument, or order  a new trial, or take such other action as is appropriate in the circumstances.

5. Upon granting the motion upon the ground, as prescribed in paragraph (g)  of subdivision one, that newly discovered evidence creates a probability that  had such evidence been received at the trial the verdict would have been more favorable to the defendant in that the conviction would have been for a lesser  offense than the one contained in the verdict, the court may either: (a) Vacate  the judgment and order a new trial; or (b) With the consent of the people,   modify the judgment by reducing it to one of conviction for such lesser offense.  In such case, the court must re-sentence the defendant accordingly.

6. Upon a new trial resulting from an order vacating a judgment pursuant to  this section, the indictment is deemed to contain all the counts and to charge  all the offenses which it contained and charged at the time the previous trial  was commenced, regardless of whether any count was dismissed by the court in the  course of such trial, except (a) those upon or of which the defendant was  acquitted or deemed to have been acquitted, and (b) those dismissed by the order  vacating the judgment, and (c) those previously dismissed by an appellate court  upon an appeal from the judgment, or by any court upon a previous post-judgment motion.

7. Upon an order which vacates a judgment based upon a plea of guilty to an  accusatory instrument or a part thereof, but which does not dismiss the entire  accusatory instrument, the criminal action is, in the absence of an express direction to the contrary, restored to its prepleading status and the accusatory  instrument is deemed to contain all the counts and to charge all the offenses  which it contained and charged at the time of the entry of the plea, except  those subsequently dismissed under circumstances specified in paragraphs (b) and  (c) of subdivision six. Where the plea of guilty was entered and accepted,  pursuant to subdivision three of section 220.30, upon the condition that it  constituted a complete disposition not only of the accusatory instrument underlying the judgment vacated but also of one or more other accusatory  instruments against the defendant then pending in the same court, the order of  vacation completely restores such other accusatory instruments; and such is the  case even though such order dismisses the main accusatory instrument underlying  the judgment.

CPL 440.20
Motion to set aside sentence; by defendant.

1. At any time after the entry of a judgment, the court in which the  judgment was entered may, upon motion of the defendant, set aside the sentence  upon the ground that it was unauthorized, illegally imposed or otherwise invalid  as a matter of law. Where the judgment includes a sentence of death, the court  may also set aside the sentence upon any of the grounds set forth in paragraph  (b), (c), (f), (g) or (h) of subdivision one of section 440.10 as applied to a  separate sentencing proceeding under section 400.27, provided, however, that to  the extent the ground or grounds asserted include one or more of the aforesaid paragraphs of subdivision one of section 440.10, the court must also apply  subdivisions two and three of section 440.10, other than paragraph (d) of  subdivision two of such section, in determining the motion. In the event the  court enters an order granting a motion to set aside a sentence of death under  this section, the court must either direct a new sentencing proceeding in  accordance with section 400.27 or, to the extent that the defendant cannot be  resentenced to death consistent with the laws of this state or the constitution  of this state or of the United States, resentence the defendant to life  imprisonment without parole or to a sentence of imprisonment for the class A-I  felony of murder in the first degree other than a sentence of life imprisonment  without parole. Upon granting the motion upon any of the grounds set forth in  the aforesaid paragraphs of subdivision one of section 440.10 and setting aside  the sentence, the court must afford the people a reasonable period of time, which shall not be less than ten days, to determine whether to take an appeal  from the order setting aside the sentence of death. The taking of an appeal by  the people stays the effectiveness of that portion of the court’s order that  directs a new sentencing proceeding. 2. Notwithstanding the provisions of  subdivision one, the court must deny such a motion when the ground or issue  raised thereupon was previously determined on the merits upon an appeal from the  judgment or sentence, unless since the time of such appellate determination  there has been a retroactively effective change in the law controlling such  issue. 3. Notwithstanding the provisions of subdivision one, the court may deny  such a motion when the ground or issue raised thereupon was previously  determined on the merits upon a prior motion or proceeding in a court of this  state, other than an appeal from the judgment, or upon a prior motion or  proceeding in a federal court, unless since the time of such determination there  has been a retroactively effective change in the law controlling such issue.  Despite such determination, however, the court in the interest of justice and  for good cause shown, may in its discretion grant the motion if it is otherwise meritorious. 4. An order setting aside a sentence pursuant to this section does  not affect the validity or status of the underlying conviction, and after  entering such an order the court must resentence the defendant in accordance  with the law.

CPL 440.30
Motion to vacate judgment and to set aside sentence; 
procedure.
1. A motion to vacate a judgment pursuant to section  440.10 and a motion to set aside a sentence pursuant to section 440.20 must be  made in writing and upon reasonable notice to the people. Upon the motion, a  defendant who is in a position adequately to raise more than one ground should  raise every such ground upon which he intends to challenge the judgment or sentence. If the motion is based upon the existence or occurrence of facts, the  motion papers must contain sworn allegations thereof, whether by the defendant  or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that  in the latter event the affiant must state the sources of such information and  the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the  moving papers. The people may file with the court, and in such case must serve a  copy thereof upon the defendant or his counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further  submit documentary evidence or information refuting or tending to refute such  allegations. After all papers of both parties have been filed, and after all  documentary evidence or information, if any, has been submitted, the court must  consider the same for the purpose of ascertaining whether the motion is  determinable without a hearing to resolve questions of fact. 1-a. (a) Where the  defendant’s motion requests the performance of a forensic DNA test on specified  evidence, and upon the court’s determination that any evidence containing deoxyribonucleic acid (“DNA”) was secured in connection with the trial resulting  in the judgment, the court shall grant the application for forensic DNA testing  of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in  the judgment, there exists a reasonable probability that the verdict would have  been more favorable to the defendant. (b) In conjunction with the filing of a  motion under this subdivision, the court may direct the people to provide the  defendant with information in the possession of the people concerning the  current physical location of the specified evidence and if the specified  evidence no longer exists or the physical location of the specified evidence is  unknown, a representation to that effect and information and documentary evidence in the possession of the people concerning the last known physical  location of such specified evidence. If there is a finding by the court that the  specified evidence no longer exists or the physical location of such specified evidence is unknown, such information in and of itself shall not be a factor  from which any inference unfavorable to the people may be drawn by the court in  deciding a motion under this section. The court, on motion of the defendant , may also issue a subpoena duces tecum directing a public or private hospital,  laboratory or other entity to produce such specified evidence in its possession  and/or information and documentary evidence in its possession concerning the location and status of such specified evidence. 2. If it appears by conceded or  uncontradicted allegations of the moving papers or of the answer, or by  unquestionable documentary proof, that there are circumstances which require  denial thereof pursuant to subdivision two of section 440.10 or subdivision two  of section 440.20, the court must summarily deny the motion. If it appears that  there are circumstances authorizing, though not requiring, denial thereof  pursuant to subdivision three of section 440.10 or subdivision three of section  440.20, the court may in its discretion either (a) summarily deny the motion, or (b) proceed to consider the merits thereof. 3. Upon considering the merits of  the motion, the court must grant it without conducting a hearing and vacate the  judgment or set aside the sentence, as the case may be, if: (a) The moving papers allege a ground constituting legal basis for the motion; and (b) Such  ground, if based upon the existence or occurrence of facts, is supported by  sworn allegations thereof; and (c) The sworn allegations of fact essential to support the motion are either conceded by the people to be true or are  conclusively substantiated by unquestionable documentary proof. 4. Upon  considering the merits of the motion, the court may deny it without conducting a hearing if: (a) The moving papers do not allege any ground constituting legal  basis for the motion; or (b) The motion is based upon the existence or  occurrence of facts and the moving papers do not contain sworn allegations  substantiating or tending to substantiate all the essential facts, as required  by subdivision one; or (c) An allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof; or (d) An  allegation of fact essential to support the motion (i) is contradicted by a  court record or other official document, or is made solely by the defendant and  is unsupported by any other affidavit or evidence, and (ii) under these and all  the other circumstances attending the case, there is no reasonable possibility that such allegation is true.  5. If the court does not determine the motion pursuant to subdivisions two,  three or four, it must conduct a hearing and make findings of fact essential to  the determination thereof. The defendant has a right to be present at such  hearing but may waive such right in writing. If he does not so waive it and if  he is confined in a prison or other institution of this state, the court must  cause him to be produced at such hearing. 6. At such a hearing, the defendant has the burden of proving by a preponderance of the evidence every fact  essential to support the motion. 7. Regardless of whether a hearing was  conducted, the court, upon determining the motion, must set forth on the record  its findings of fact, its conclusions of law and the reasons for its  determination.