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 one hundred and fifty 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 videos on this subject, see, the 440 Channel, Attorney Labe Richman, https://www.youtube.com/watch?v=Q5TrcScTgFE&t=38s
Frequently asked questions:
What is the time limit for filing a 440 motion in New York?
There is no time limit. One can file the motion at any time. But the length of time that one waits can affect the Court’s decision. There are many legal issues that might appear weaker when one considers how long the defendant waited to raise them. As an emotional issue, the Courts also resent the fact that a defendant waits until the prosecution cannot prove the case to challenge the convictions legality. That does not mean that one should not try to vacate a conviction by 440. There are justifications for waiting and those can be argued to the Court.
Where is the 440 motion filed and argued?
It is filed and argued in the lower court where the conviction occurred.
What is a 440 motion?
It is a motion in the same court where one was convicted to vacate the conviction (or to reopen the case) because it was illegally obtained in some way. There are numerous grounds that one can raise but the most common one is that the conviction was obtained in violation of the defendant’s right to the effective assistance of counsel.
What are the grounds raised in a 440 motion?
The statue lists many grounds, such as, there was no jurisdiction in that court, the plea was induced by fraud, the defendant was incompetent at the time of the plea, the plea of guilty was not knowing and intelligent, there were errors in the trial that were not apparent on the record, there was newly discovered evidence that could not have been presented at the trial, that the conviction was obtained in violation of the defendant’s constitutional rights under the state or federal constitution. This last ground, as noted above, usually involves a violation of the defendant’s rights to the effective assistance of counsel. I have placed the entire 440 statute at the end of this page for your information.
Can a defendant appeal the denial of a 440?
The short answer is yes but it’s complicated. To appeal a denial of a 440 the defendant must request permission to appeal from a justice in the Appellate Court. This must be filed within 30 days of the defendant receiving a notice of entry of judgment that the 440 was denied. The request for permission is done by motion in the appeals court where the matter would be heard if the permission were granted. Once permission is granted, a full appeal must ensue with a compilation of the record and the filing of briefs.
What is contained in a 440 motion?
Although based on the specifics of a case an attorney would have to decide what should be included in a 440 motion, the following include some of the basics generally included in the filing: (a) a notice of motion; (b) an affirmation from the attorney filing the motion (c) relevant documents from the case such as the complaint or indictment and other filings in the lower court (d) the transcripts of the proceedings below; (e) if ineffective assistance of counsel is alleged then an affirmation from the attorney involved or an explanation as to why an affirmation is not included; and (f) a memorandum of law as to why relief should be granted.
What should be included in the investigation of the case to prepare for a 440 motion?
Again, an attorney would decide what investigation occurs based on the specifics of the case but the following is generally done: (a) obtain the transcripts of the plea or sentencing or the trial; (b) examine the court file; (c) examine the file of the attorney who handled the plea of guilty or trial; (c) speak to that attorney about the case; (d) if an appeal has been done, obtain the briefs, the record or appendix for the appeal and the decisions on appeal; (e) obtain the contents of the district attorney’s file by doing a request under the Freedom of Information Act; (f) debriefing of the defendant and relevant witnesses; and (f) legal research on the issues of the case.
May an immigrant file a 440 when the conviction is causing immigration consequences? Of course every case is different, but many immigrants do obtain vacaturs of convictions which help them with their immigration cases. In 2010, the Supreme Court issued its decision in Padilla v. Kentucky, giving a criminal attorney the duty to advise the defendant of the immigration consequences of the conviction. A client trying to raise such an issue must also show prejudice — that the attorney’s violation of the duty made a difference in the outcome. There are also complicated issues of retroactivity that require an attorney’s involvement when raising a Padilla claim. Importantly, there are immigration related claims that involve inaccurate immigration advice and the failure to properly negotiate a plea of guilty that could avoid the horrible immigration result. Although past cases do not guarantee success in the future, we have helped immigrants solve their immigration consequences with litigation in approximately 100 cases.
NEW MARIJUANA EXPUNGEMENT LAWS AND THEIR EFFECT ON IMMIGRANTS
New York has recently changed its marijuana laws to automatically expunge the lowest two levels of marijuana offenses — that is, violations and B misdemeanors under Penal Law Sections 221.05 and 221.10. However, and this is a big however, these expungements do not work for immigration authorities. There are special provisions for an immigrant to move to vacate these expunged convictions under Criminal Procedure Law Section 440.10. These motions are fairly easy to do and we charge less for them than we would on a full constitutional attack on a conviction. That does not mean that these less complex motions are not on legal grounds. Immigration authorities only honor those vacatur orders based on illegality. That is why the expungements do not work in the first place.
The section used for motion to vacate marijuana convictions is CPL Sec. 440.10(1)(k). If the motion is won, the conviction (which has already been expunged) may be dismissed.
NEW MAXIMUM SENTENCE LAWS ON MISDEMEANORS IN NEW YORK AND THERE EFFECT ON IMMIGRANTS
New York has passed a new sentencing law reducing the maximum sentence on class A misdemeanors from one year to 364 days. This has a huge effect on immigrants because a single crime of moral turpitude within five years of entry that has a maximum sentence of a year or more is deportable. Under this new law, a single class A misdemeanor which occurred within five years of entry may never be deportable as a crime of moral turpitude. (That does not mean a class A misdemeanor is not deportable for some other reason, such as a crime of domestic violence or child abuse).
This law also has an effect on whether a class A misdemeanor could be an aggravated felony under immigration law. Many aggravated felonies are defined as a particular offense (such as a theft crime or a forgery crime) where the amount of imprisonment imposed is one year. Of course, if the maximum sentence is 364 days, a misdemeanor offense could never be an aggravated felony.
USE OF THE NEW PROVISION, CPL SECTION 440.10(1)(J), BY IMMIGRANTS TO TAKE ADVANTAGE OF THE NEW MISDEMEANOR SENTENCING LAW ON OLD CASES
If an immigrant is deportable as described above, the non-citizen can move to vacate the old conviction under CPL section 440.10(1)(j) and plead guilty to the same crime with a lesser sentence. This provision is advantageous because it carries a presumption that the prior conviction was obtained illegally. A presumption in this case means that the defendant, at least at first, does not bear the burden of proving that the conviction is unconstitutional. The conviction is presumed to be illegally obtained. Normally on a 440 motion, the situation is the opposite — the conviction is presumed to be legal. This new provision allows an immigrant with an old conviction which is a crime of moral turpitude within five years of entry to vacate and replead under the new law so that the conviction is not deportable under the moral turpitude provision. It would also allow an aggravated felon to lower their sentence by one day to avoid aggravated felony status. We have used Criminal Procedure Law section 440.10(1)(j) to avoid deportability for immigrants and are happy that the New York Legislature has added this new ground for vacating convictions.
**** WARNING: For those that do not have a green card it is important to know that even when a conviction is vacated, there may be situations where the facts of the case itself (with or without the conviction) still acts as a bar to obtaining a green card.
For information on our post-conviction practice you may also wish to view our ConvictionsAttack page and our Published Articles page.
The exact language of 440.10 as of December 2020 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
(g-1) Forensic DNA testing of evidence performed since the entry of a judgment, (1) in the case of a defendant convicted after a guilty plea, the court has determined that the defendant has demonstrated a substantial probability that the defendant was actually innocent of the offense of which he or she was convicted, or (2) in the case of a defendant convicted after a trial, the court has determined that there exists a reasonable probability that the verdict would have been more favorable to the defendant.
(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States; or
(i) The judgment is a conviction where the arresting charge was under section 240.37 (loitering for the purpose of engaging in a prostitution offense, provided that the defendant was not alleged to be loitering for the purpose of patronizing a person for prostitution or promoting prostitution) or 230.00 (prostitution) or 230.03 (prostitution in a school zone) of the penal law, and the defendant’s participation in the offense was a result of having been a victim of sex trafficking under section 230.34 of the penal law, sex trafficking of a child under section 230.34-a of the penal law, labor trafficking under section 135.35 of the penal law, aggravated labor trafficking under section 135.37 of the penal law, compelling prostitution under section 230.33 of the penal law, or trafficking in persons under the Trafficking Victims Protection Act (United States Code, title 22, chapter 78); provided that (i) a motion under this paragraph shall be made with due diligence, after the defendant has ceased to be a victim of such trafficking or compelling prostitution crime or has sought services for victims of such trafficking or compelling prostitution crime, subject to reasonable concerns for the safety of the defendant, family members of the defendant, or other victims of such trafficking or compelling prostitution crime that may be jeopardized by the bringing of such motion, or for other reasons consistent with the purpose of this paragraph; and (ii) official documentation of the defendant’s status as a victim of trafficking, compelling prostitution or trafficking in persons at the time of the offense from a federal, state or local government agency shall create a presumption that the defendant’s participation in the offense was a result of having been a victim of sex trafficking, compelling prostitution or trafficking in persons, but shall not be required for granting a motion under this paragraph;
(j) The judgment is a conviction for a class A or unclassified misdemeanor entered prior to the effective date of this paragraph and satisfies the ground prescribed in paragraph (h) of this subdivision. There shall be a rebuttable presumption that a conviction by plea to such an offense was not knowing, voluntary and intelligent, based on ongoing collateral consequences, including potential or actual immigration consequences, and there shall be a rebuttable presumption that a conviction by verdict constitutes cruel and unusual punishment under section five of article one of the state constitution based on such consequences; or
(k) The judgment occurred prior to the effective date of this paragraph and is a conviction for an offense as defined in subparagraph (i) or (ii) of paragraph (k) of subdivision three of section 160.50 of this part, in which case the court shall presume that a conviction by plea for the aforementioned offenses was not knowing, voluntary and intelligent if it has severe or ongoing consequences, including but not limited to potential or actual immigration consequences, and shall presume that a conviction by verdict for the aforementioned offenses constitutes cruel and unusual punishment under section five of article one of the
state constitution, based on those consequences. The people may rebut these presumptions.
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. This paragraph shall not apply to a motion under paragraph (i) of subdivision one of this section; 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 to a motion under paragraph (i) of subdivision one of this section; 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 or six of this section, 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. If the court grants a motion under paragraph (i) or paragraph (k) of subdivision one of this section, it must vacate the judgment and dismiss the accusatory instrument, and may take such additional action as is appropriate in the circumstances.
7. 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.
8. 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.
9. Upon granting of a motion pursuant to paragraph (j) of subdivision one of this section, the court may either:
(a) With the consent of the people, vacate the judgment or modify the judgment by reducing it to one of conviction for a lesser
(b) Vacate the judgment and order a new trial wherein the defendant enters a plea to the same offense in order to permit the court to resentence the defendant in accordance with the amendatory provisions of subdivision one-a of section 70.15 of the penal law.