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.
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.
For your information, the exact language of the 440 law is provided below as of July of 2019:
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; [Here is a new provision] (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.
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.
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.
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.