Post Conviction Motion Practice

When your client is innocent, but has been wrongfully convicted or plead guilty when they were innocent (a/k/a “Alford Plea” when a defendant concedes that the prosecution has enough evidence to convict them, but still holds to a claim of innocence) in New York State, it may be possible to have their conviction overturned. There are certain circumstances, like the discovery of new evidence or when crucial evidence wasn’t included at trial, where you may ask the court to either vacate (cancel) the judgment or set aside your sentence. This can be done through a motion to the same court where you were convicted under Article 440 of the New York Criminal Procedure Law (“NYCPL”) [The laws pertaining to Article 440 motions can be found in §§ 440.10–440.60 of the NYCPL].


Basically, an Article 440 motion is a challenge to the legality of your conviction or sentence [other ways of attacking a client’s conviction include filing a state or federal writ of habeas corpus, applicable when client is incarcerated]. A successful 440 motion will allow for a new trial or sentence. Article 440 motions are not appeals or substitute for an appeal or second appeal. See People v. Harris, 109 A.D.2d 351, 353, 491 N.Y.S.2d 678, 682 (2d Dept. 1985) (explaining that an Article 440 motion is designed to inform the court of facts not reflected in the record and not known at the time of judgment that would undermine the judgment as a matter of law). An appeal is different in that you are requesting a higher court to review errors of the trial court and [traditionally] you may only raise issues appearing in the trial record. Whereas, a 440 motion allows you to inform the trial court of facts that cannot be raised on appeal because they were not in the trial record. See People v. Bell, 161 A.D.2d 772, 772–73, 556 N.Y.S.2d 118, 119 (2d Dept. 1990) (holding that direct appeal cannot be had for matters based outside of the record); People v. Piparo, 134 A.D.2d 95, 295, 520 N.Y.S.2d 621, 622 (2d Dept. 1987) (stating that facts not contained in the record are not reviewable on direct appeal). However, in a death penalty case, an Article 440 motion is hear directly by the Court of Appeals. N. Y. Ct. App. R. 510.4.




Article 440 was created in part to replace the remedy of coram nobis (writ of coram nobis) and the remedy of state habeas corpus. Though both remedies exist for situations in which an Article 440 motion is unavailable. (e.g., coram nobis motion should be used to raise a claim of ineffective assistance of appellate counsel & state habeas corpus is still available for New York State prisoners in some situations). Also important to note that the remedy under state habeas corpus is immediate release, whereas an Article 440 Motion is not immediate release but rather a new trial, appeal, or sentence.


There are three types of Article 440 motions:


1)Motion to Vacate Judgment (Pursuant to NYCPL §440.10) – A motion to vacate, or cancel, a judgment challenges the fairness and/or legality of your conviction and allows you to attack your client’s conviction by stating that the trial court acted improperly when it found your client guilty. This motion, when granted, allows for a new trial or appeal. Article 440.10 sets out eight issues you may complaint about in a motion to vacate judgment. N.Y. Crim. Proc. Law § 440.10 (McKinney). There issues are as follows:


a.The trial court lacked “jurisdiction” to decide your client’s case.


b.The judge or prosecutor (or a person representing one of them) used fraud, false statements (“misrepresentation”), or physical or undue psychological pressure (“duress”) to secure your conviction. You cannot simply claim, however, that the judge or district attorney used fraud or misrepresentation. See People v. Gates, 168 A.D.2d 995, 996, 564 N.Y.S.2d 938, 938 (4th Dept. 1990) (finding that unsupported claim of fraud is not enough to overturn a conviction). As with every Article 440 motion, you must support your claim with specific facts in the form of an affidavit and, if possible, witnesses. See People v. Session, 34 N.Y.2d 254, 255, 313 N.E.2d 728, 729, 357 N.Y.S.2d 409, 410 (1974) (finding that affidavits from co-defendants stating that assistant district attorney had threatened them with increased charges if they testified on behalf of defendant were insufficient to require hearing on Article 440 motion since affidavits did not contain nature of any testimony co-defendants could offer).


c.At trial, the prosecutor introduced (or the judge allowed in) important (“material”) evidence the prosecutor (or judge) knew was false at the time of trial. Again, you cannot just state the judge or district attorney knew certain facts were false; you must show they knew the facts to be false. See People v. Brown, 56 N.Y.2d 242, 246–47, 436 N.E.2d 1295, 1297, 451 N.Y.S.2d 693, 695 (1982) (upholding trial court’s denial of defendant’s motion to vacate judgment because defendant’s motion papers did not contain any evidence demonstrating that prosecution was aware of witness’s false testimony).


d.The prosecutor introduced important (“material”) evidence that was obtained in violation of your client’s rights under the U.S. or New York State Constitutions.


e.Your client could not understand or participate in the trial because you suffered from a mental disability of some kind. For instance, in one case, a prisoner claimed in his Article 440 motion that he did not remember or understand his plea or the sentencing proceedings. In support of his motion, the prisoner noted that he had been diagnosed after the judgment as suffering from psychosis associated with brain trauma. In light of this fact, the court held that there should be a hearing on the prisoner’s motion to vacate the conviction for manslaughter. People v. Fixter, 79 A.D.2d 861, 861, 434 N.Y.S.2d 484, 485 (4th Dept. 1980).


f.The record of your client’s case failed to include improper (“prejudicial”) conduct that occurred at their trial and that would have led an appellate court to reverse the judgment against them if the appellate court could have learned of the conduct from the record. People v. Cleveland, 132 A.D.2d 921, 921, 518 N.Y.S.2d 477, 478 (4th Dept. 1987) (finding that defendant’s claim that district attorney had previously represented him on other charges and was therefore is qualified from prosecuting him could be raised in an Article 440 motion since conduct claimed to be improper and prejudicial did not appear in record). Such conduct includes the prosecutor’s failure to supply client with Brady material, which is any evidence in the prosecutor’s possession or knowledge that is favorable to the defense and material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963) (holding that the suppression of evidence by the prosecution denied petitioner due process); see also People v. Vilardi, 76 N.Y.2d 67, 77–78, 555 N.E.2d 915, 920–21, 556 N.Y.S.2d 518, 523–24 (1990) (ordering retrial on arson charges, because prosecution withheld material and exculpatory evidence from defense; showing “reasonable possibility” that failure to disclose favorable evidence contributed to verdict is the appropriate standard under New York State constitutional law). This material is often referred to as “exculpatory” evidence. To have a conviction overturned based upon the failure to produce Brady material there must be a reasonable probability that the evidence would have affected the ultimate outcome of the trial. However, if your client’s defense counsel made a specific request for the evidence in question, there need only be a reasonable possibility that disclosure would have changed the outcome. See People v. Bond, 95 N.Y.2d 840, 843, 735 N.E.2d 1279, 1281, 713 N.Y.S.2d 514, 516 (2000) (vacating second degree murder conviction because reasonable possibility existed that result would have been different if prosecutor had disclosed, in response to a specific Brady request, key witness’s denial of having seen shooting). The reasonable probability test is harder to satisfy than the reasonable possibility test. Under the reasonable probability test, the undisclosed evidence receives no more weight than it would have been given had it been introduced at trial. Thus, the trial court reviewing an Article 440 motion must determine how the evidence would have affected the jury’s deliberations. On the other hand, the reasonable possibility test focuses on the evidence withheld, and the court must determine whether the failure to disclose it may have contributed to the verdict. Additionally, the evidence in both cases must be admissible in court. For example, polygraph (lie detector) test results suggesting that a witness lied are of no use since they are inadmissible as evidence. See People v. Scott, 88 N.Y.2d 888, 891, 667 N.E.2d 923, 924, 644 N.Y.S.2d 913, 915 (1996) (finding failure to produce scratch sheet alluding to polygraph examination of witness not grounds for vacating conviction in part because polygraph results would have been inadmissible as evidence). Brady material may also include evidence in the possession of other law enforcement agencies involved in your prosecution (for example, FBI Crime Lab notes). However, if an out-of-state agency refuses to turn over materials, the prosecution cannot be held responsible for failure to disclose. See People v. Santorelli, 95 N.Y.2d 412, 421–22, 741 N.E.2d 493, 497–98, 718 N.Y.S.2d 696, 700–01 (2000) (refusing to vacate conviction based upon prosecutor’s failure to provide reports from a parallel FBI investigation where the FBI was unwilling to turn over the reports to the prosecutor).


g.You or your client have uncovered new evidence since their trial they could not have discovered before or during your trial. To succeed on this ground, you must show that the evidence (a) will probably change the result in your case if a new trial is granted; (b) was discovered since the trial; (c) could not have been discovered before the trial by the exercise of due diligence; (d) is “material” to the issue of your guilt; and (e) does not simply duplicate or contradict other evidence. See People v. Latella, 112 A.D.2d 321, 322, 491 N.Y.S.2d 771, 772–73 (2d Dept. 1985) (setting standards for newly discovered evidence); People v. Sherman, 83 Misc. 2d 563, 565, 372 N.Y.S.2d 546, 548–49 (Sup. Ct. N.Y. County 1975) (holding indictment of police officer who testified at trial and investigation of judge who signed search warrant not enough to grant Article 440 motion). Furthermore, if you would like to make an Article 440 motion on the grounds of newly-discovered evidence, you must make the motion within a reasonable time after you find the new evidence. But you can only make an Article 440 motion on the basis of newly discovered evidence if client were found guilty after a full trial; if you pled guilty, you cannot make an Article 440 motion on the basis of newly discovered evidence. See People v. Latella, 112 A.D.2d 321, 322, 491 N.Y.S.2d 771, 772–73 (2d Dept. 1985) (holding that guilty plea forecloses Article 440 motion); People v. Sherman, 83 Misc. 2d 563, 565, 372 N.Y.S.2d 546, 548 (Sup. Ct. N.Y. County1975) (“There was no verdict after trial here. The defendant pleaded guilty before trial. Thus, on its face, defendant’s pleading requires a denial of this motion.”).


h.Your conviction was obtained in violation of your client’s constitutional rights. Some examples of constitutional rights violations include:


                                     i.Investigation and Policing: A witness identified your client through a police line-up or photograph in which the police were (impermissibly) suggestive, violating your client’s Fourteenth Amendment right to due process.


                                     ii.Your Client’s Confession: Your client’s confession was obtained involuntarily in violation of your Fourteenth Amendment due process rights. In order to prove that your client’s confession was involuntary, you must prove that your client’s will was overborne (overtaken). Some facts that may support a claim that your client's will was overborne include threats of physical violence, threats against loved ones, repeated coercive questioning after your client indicated that they wanted to stop answering questions, fraudulent promises by police, and other forms of ill-treatment.


                                     iii.Right to Counsel Violations: (a) Your client was denied Fifth and Sixth Amendment rights to counsel. You would claim this if your client were denied counsel that the State should have provided because they were indigent (poor); they were denied the opportunity for new counsel when an irreconcilable difference arose between them and their appointed counsel; they were denied counsel at arraignment; client did not voluntarily, knowingly, and intelligently waive their right to counsel during interrogation or discussions with police officers while in custody; or client’s defense lawyer provided such poor representation as to amount to ineffective assistance of counsel. (b) The trial court unreasonably denied your client’s request to proceed pro se (as your own attorney). (c) Client was convicted based on information provided by an informant who was “bugged” or reported jail cell conversations between your client and him in violation of the Fifth or Sixth Amendments. Client was temporarily banned from consulting with your attorney.


You may raise any of these violations in your Article 440 motion as long as they are applicable to your client’s case and your motion satisfies the conditions described in below in the next section. For example, if your client failed to present their constitutional attack in their direct appeal of their conviction, you will later be foreclosed from making an Article 440 motion based on that constitutional claim, unless your claim falls into one of the exceptions described below in the next section.


In addition to federal constitutional violations, you may also raise violations of your client’s rights under New York State’s Constitution, which are similar, but may be broader than the same rights under the U.S. Constitution. For example, the New York State Constitution provides you with greater protection against unreasonable police searches than the U.S. Constitution. See People v. Dunn, 77 N.Y.2d 19, 25, 564 N.E.2d 1054, 1058, 563 N.Y.S.2d 388, 392 (1990) (finding that police use of a specially trained narcotics detection dog to conduct “canine sniff” outside defendant’s apartment is a search under New York Constitution). The New York State constitution also provides you with greater protection against a court imposing a longer sentence upon you after a successful appeal. See People v. Van Pelt, 76 N.Y.2d 156, 161–62, 556 N.E.2d 423, 425–26, 556 N.Y.S.2d 984, 986–87 (1990) (finding that a sentence following retrial that was for a longer period than the sentence from the first trial was presumed to be vindictive and must be set aside, even if the second trial judge was different from the first trial judge). In addition, the New York State Constitution requires a prosecutor to supply you with a wider category of evidence than the U.S. Constitution requires. See People v. Vilardi, 76 N.Y.2d 67, 77, 555 N.E.2d 915, 920, 556 N.Y.S.2d 518, 523 (1990) (holding where the prosecutor was made aware by a specific discovery request that defendant considered exculpatory material important to the defense, standard of materiality is “reasonable

possibility” that failure to disclose the material contributed to the verdict). But see People v. Lesiuk, 161 A.D.2d 21, 25, 560 N.Y.S.2d 711, 713 (3d Dept. 1990) (stating that standard is “reasonable probability” where the prosecution has tried hard to produce a missing exculpatory police informant), aff’d 81 N.Y.2d 485, 617 N.E.2d 1047, 600 N.Y.S.2d 931 (1993). Finally, your right to a lawyer is broader under the New York State Constitution than the U.S. Constitution. See People v. Velasquez, 68 N.Y.2d 533, 536, 503 N.E.2d 481, 483, 510 N.Y.S.2d 833, 835 (1986) (“In this state the right to counsel, both as to the time of its attachment and as to its waiver, is

broader than the protection afforded under Federal law.”); People v. Hobson, 39 N.Y.2d 479, 483–84, 348 N.E.2d 894, 897, 384 N.Y.S.2d 419, 422 (1976) (detailing New York case law that extended protections for the defendant under the State Constitution beyond those guaranteed by the Federal Constitution).


Another example of state and federal constitutional violations that can be raised in an Article 440 motion is ineffective assistance of counsel, however, a claim of ineffective assistance of counsel may not be based solely upon your client’s lawyer’s unsuccessful use of a certain trial strategy or that counsel was simply ineffective. You must identify the specific acts or omissions of counsel that you believe were so ineffective that your client was deprived of right to counsel. Then, you must also show that this deficiency of counsel prejudiced your defense to such an extent that the trial result is unreliable.


2)Motion to Set Aside Sentence (Pursuant to NYCPL §440.20) – a motion to set aside a sentence enables you to attack your client’s sentence. In this motion, you are not challenging your client’s guilt, rather you argue that the punishment is too harsh for the crime (e.g., you can challenge your client’s sentence if it exceeds the maximum sentence allowed by the law). A sentence is unauthorized if the sentence exceeds the maximum length of time allowed by law. See People v. Fuller, 119 A.D.2d 692, 692, 501 N.Y.S.2d 116, 116 (2d Dept. 1986) (vacating sentence longer than length of time imposable for the crime committed). For example, third degree burglary, a Class D felony [the N.Y. Penal Law describes and classifies every felony. In order to determine whether your sentence was authorized by law, find out what class of felony you were convicted of by looking up your offense in the Penal Law], carries a maximum sentence of seven years if you are a first or second felony offender. N.Y. Penal Law § 70.00 (McKinney). Thus, you could make an Article 440 motion to attack a sentence of seven years and one day for third degree burglary if you are a first or second felony offender. However, you could not attack a sentence of seven years. Although this sentence may seem long or excessive in comparison to sentences that other defendants have received for the same crime, the Penal Law authorizes a seven-year sentence. See People v. Baraka, 109 Misc. 2d 271, 273, 439 N.Y.S.2d 827, 830 (N.Y. County Crim. Ct. 1981) (holding that the court deciding an Article 440 motion has no authority to disturb a sentence that conforms to the Penal Law). You cannot raise a claim that your sentence was too harsh or excessive under this motion as long as the sentence was authorized. N.Y. Crim. Proc. Law § 440.20 and Practice Commentary (McKinney).


Additionally, there are other grounds that may be raised in an Article 440 motion to set aside your client’s sentence as illegal, including:


                                     i.Due process errors in the sentencing procedures. See People v. Bellamy, 160 A.D.2d 886, 887–88, 554 N.Y.S.2d 320, 321 (2d Dept. 1990) (vacating the sentence and finding that, while judge had authority to vacate a previously-imposed minimum permissible sentence, defendant’s right to due process was violated when judge thereafter imposed maximum permissible sentence, without offering any justification for doing so);


                                     ii.The sentencing court disregarded your “right of allocution” which means that the judge failed to ask you at your sentencing if you wished to address the court on your own behalf. See People v. St. Claire, 99 A.D.2d 982, 982, 473 N.Y.S.2d 19, 20 (1st Dept. 1984) (stating that violation of right to allocution should be raised in Article 440.20 motion); People v. Quiles, 72 A.D.2d 610, 610, 421 N.Y.S.2d 119, 119–20 (2d Dept. 1979) (defendant at sentencing indicated possibility that his intoxication at time of robbery had negated his criminal intent, and if this were so, issue of whether he had knowingly waived this potential defense to the crime must be examined by the court); People ex rel. Boddingham v. LaVallee, 50 A.D.2d 692, 692, 375 N.Y.S.2d 477, 478 (3d Dept. 1975) (holding that defendant who was denied right of allocution is entitled only to resentencing and not release from incarceration);


                                     iii.The sentencing court disregarded your right to be present at sentencing. See People v. Brown, 155 A.D.2d 608, 608, 547 N.Y.S.2d 664, 664 (2d Dept. 1989) (defendant’s absence at resentencing denied his statutory right); People v. Herrera, 160 A.D.2d 416, 416, 554 N.Y.S.2d 30, 30–31 (1st Dept. 1990) (based on defendant’s behavior “it is clear that defendant voluntarily absented himself from the sentencing proceedings, thereby waiving such right.”); People v. Griffin, 135 A.D.2d 730, 731, 522 N.Y.S.2d 632, 634 (2d Dept. 1987) (holding that defendant waived his right to be present at his predicate felony hearing and sentencing by not appearing even though he knew when he refused to attend that the hearing court would proceed in his absence); People v. Corley, 67 N.Y.2d 105, 110, 491 N.E.2d 1090, 1092, 500 N.Y.S.2d 633, 635 (1986) (affirming sentence imposed in defendant’s absence where “defendant willfully absented himself from the court for the purpose of frustrating the sentencing process”);


                                     iv.The court violated your First Amendment right of free association by, for example, considering at sentencing your membership in a racist organization where this membership was not relevant to any of the issues at your trial. See Dawson v. Delaware, 503 U.S. 159, 160, 112 S. Ct. 1093, 1095, 117 L. Ed. 2d 309, 314 (1992) (holding that admitting evidence at the capital sentencing proceeding of defendant’s membership in racist gang was error where that evidence was not relevant to any issue in the punishment phase);


                                     v.The court sentenced you as a second- or third-time offender, but the prior conviction was obtained in violation of your constitutional rights or was in some other way invalid. See People v. Simmons, 143 A.D.2d 153, 154, 531 N.Y.S.2d 928, 928–29 (2d Dept. 1988) (finding that defendant’s prior conviction for buying, receiving, and concealing stolen property under Alabama statute that did not specify monetary value for stolen property did not qualify as a predicate felony for purposes of second felony offender status as the New York statute required proof that the value of the stolen property exceeded $250); People v. Sullivan, 153 A.D.2d 223, 232–33, 550 N.Y.S.2d 358, 364 (2d Dept. 1990) (“When the defendant fails to raise an objection, and when, as a result, the legality of the sentence cannot be determined by this court upon the information contained in the appellate record, review as a matter of law should be denied.”); People v. Eason, 168 Misc. 2d 44, 46-47, 641 N.Y.S.2d 1018, 1020 (Sup. Ct. Queens County 1996) (setting aside sentence where error regarding existence of predicate felony constituted mutual mistake as to effect of certain dates, and was clear on the record; prior felony had not yet been sentenced so was not available as a predicate); see also N.Y. Crim. Proc. Law §§ 400.15(7)(b), 400.16, 400.20(6), & 400.21(7)(b) (McKinney). For example, you may challenge the constitutional validity of the prior convictions or the decision to count them as predicates (prior convictions). Perhaps the most common error in this area is the use of out-of-state convictions as predicate felonies. Your client’s out-of-state conviction will only count as a felony if your client’s criminal conduct would have been a felony under New York law. The crime must be a felony, punishable by more than one year imprisonment in both states. N.Y. Penal Law § 70.06(1)(b)(i) (McKinney). For example, if your client was convicted of promoting prostitution by soliciting persons to patronize a prostitute in New Jersey, where it is a felony, your client’s conviction cannot be used as a predicate felony in New York since the equivalent New York crime, promoting prostitution in the fourth degree, is a misdemeanor. People v. Johnson, 127 A.D.2d 1003, 1003, 513 N.Y.S.2d 60, 60 (4th Dept. 1987) (holding New Jersey felony conviction for promoting prostitution did not constitute felony for New York sentencing purposes because crime would have been misdemeanor in New York);


                                     vi.The court erroneously imposed consecutive sentences (one sentence running after another) when your client should have been sentenced to concurrent sentences (two sentences running at the same time). See People v. Riggins, 164 A.D.2d 797, 797, 559 N.Y.S.2d 535, 536 (1st Dept. 1990) (finding that Court had no authority to change concurrent sentences to consecutive ones on its own without being asked by either side). In general, consecutive sentences cannot be imposed where (1) a single act constitutes two or more offenses, or (2) a single act constitutes one offense and is a material element of another. People v. Jeanty, 268 A.D.2d 675, 679–81, 702 N.Y.S.2d 194, 200–01 (3d Dept. 2000) (holding that the lower court erred in making sentence for robbery in the first degree and burglary in the first degree consecutive to felony murder sentence because the conduct constituting the robbery and burglary offense could have been a material element of the felony murder; however, the court also held that aggregate sentence of 75 years to life was proper). For example, if your client committed armed robbery, they can be charged with the crimes of robbery and weapons possession. However, you cannot be sentenced consecutively for these crimes as they were part of the same act.


                                     vii.Remember, a motion under Section 440.20 deals solely with your client’s sentence and has no effect on your underlying conviction. If your motion is granted, the court will vacate your client’s sentence and resentence them in accordance with the law. N.Y. Crim. Proc. Law § 440.20(4) and Practice Commentary (McKinney).


3)Request for DNA Testing (Pursuant to Article 440.30[1-a]) – Under N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney), you may request, on behalf of your client, in a 440 motion that a forensic DNA test be done on evidence introduced at trial. The court will order that a test be done if it determines that the following requirements are met:


a.Your 440 motion requests the performance of a forensic test on specific evidence, which is clearly identified;


b.The evidence upon which you are requesting a DNA test was obtained in connection with the trial which resulted in your conviction; and


c.There is a “reasonable probability” that if the results of a DNA test had been admitted at the trial, the verdict would have been more favorable to you. N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney).


The third requirement is likely the most important, as the court will not order a DNA test if it believes there is no “reasonable probability” the verdict would have been different even if you are right about whatever you are trying to prove with the DNA test. See People v. Tookes, 167 Misc. 2d 601, 605–06, 639 N.Y.S.2d 913, 916 (Sup. Ct. N.Y. County 1996) (finding no reasonable probability where: (1) there was no case for mistaken identity, (2) there was clear evidence of rape, (3) defendant failed earlier to pursue an enzyme analysis, and (4) a showing that defendant’s DNA did not match the crime scene sample would not likely have resulted in a “verdict more favorable to the defendant”).






There are strict requirements as to when you may make a motion to vacate judgment under Section 440.10 and the requirements under Section 440.20 are more relaxed. See below:


1)There are four circumstances in which the court must deny your motion to vacate judgment under Section 440.10. N.Y. Crim. Proc. Law §§ 440.10(2)(a)–(d) (McKinney). These circumstances are as follows:


a.You cannot make a Section 440.10 motion if your client’s claim was raised on appeal and the court denied your client’s complaint on the merits (in other words, when the appellate court found that your client’s legal arguments could not overcome your guilty conviction). See, e.g., People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 934 (1st Dept. 1990) (arguments raised and rejected on the merits on direct appeal may not be raised in an Article 440 motion). There is an exception to this rule that applies when the law has changed after your client’s appeal was decided and the courts have agreed to apply the new law “retroactively” (in other words, when courts apply a new law to cases which have been tried, decided, or appealed before the change in the law). N.Y. Crim. Proc. Law § 440.10(2)(a) (McKinney). The Court of Appeals will only grant “full retroactivity” to new laws whose purpose is to preserve the fact-finding process from unreliably obtained information relating directly and substantially to a defendant’s guilt or innocence. Full retroactivity means you can raise the new law in a post-conviction proceeding, such as an Article 440 motion, in order to attack a conviction that was handed down and appealed before the new law came into effect. However, full retroactivity has been applied very rarely in New York. See People v. Laffman, 161 A.D.2d 111, 112–13, 554 N.Y.S.2d 840, 841 (1st Dept. 1990) (vacating the judgment and remanding for a new trial where the defendant was shown to the victim handcuffed and alone with one other suspect in the police station for identification. The station house identification procedures were found to be improper in a subsequent case which applied retroactively to these cases). But see People v. Pepper, 53 N.Y.2d 213, 222, 423 N.E.2d 366, 370, 440 N.Y.S.2d 889, 893 (1981) (finding the defendant was not entitled to retroactive application of a court decision that held that once an indictment or complaint has been filed, a defendant cannot waive his constitutional right to counsel unless in presence of counsel); People v. Douglas, 205 A.D.2d 280, 292, 617 N.Y.S.2d 733, 740 (1st Dept. 1994) (stating the Ryan decision, which held that defendant’s knowledge of drug weight was to be proved by the prosecution, will not be applied retroactively); People v. Byrdsong, 161 Misc. 2d 232, 235, 613 N.Y.S.2d 543, 544–45 (Sup. Ct. Queens County 1994) (limiting retroactivity to only direct appeals and not to post-conviction hearings of a decision, holding that defendants generally had the right to be present during Sandoval hearings to determine whether the prosecution should be permitted to raise prior convictions and bad acts on cross-examination of the defendant applies retroactively, but only to direct appeals and not to post-conviction motions); People v. Alvarez, 151 Misc. 2d 697, 701, 573 N.Y.S.2d 592, 594–95 (Sup. Ct. Kings County 1991) (stating that the Van Pelt decision, which held that a presumption of vindictiveness applies where a second sentence is higher after retrial than the original sentence, will not be applied retroactively). The courts decide whether a new rule should apply retroactively after considering the following three factors:


                                i.the new rule’s purpose;


                                ii.the extent of the reliance on the old rule (in other words, were there a great number of cases and, as a result, a large number of defendants convicted and incarcerated under the old rule); and


                                iii.the effect on the administration of justice in applying the new rule retroactively (in other words, if the reliance on the old rule has been very great, applying the new rule retroactively would result in so many overrulings and retrials that it would over-burden the criminal courts). In such a situation, the courts are unwilling to apply the new rule retroactively. See People v. Mitchell, 80 N.Y.2d 519, 528–29, 606 N.E.2d 1381, 1386, 591 N.Y.S.2d 990, 995 (1992) (applying a new state statutory right prospectively and not retroactively because it violated this three-pronged test: (1) the court held that the new rule’s purpose would not be hindered by prospective application, (2) the courts had substantially relied on the old rule, and (3) and retroactive application would substantially burden the justice system); People v. Perez, 162 Misc. 2d 750, 762–63, 616 N.Y.S.2d 928, 936 (Sup. Ct. Kings County 1994) (observing as dicta that a certain new rule would not apply retroactively, even though retroactive application would further the new rule’s purpose, because retroactivity would violate the second and third prongs of this three-pronged test due to past substantial reliance and the potential for future substantial burden on the administration of justice).


     b.You cannot make a Section 440.10 motion on the basis of an error that you may still raise in an appeal of your client’s conviction or that your client has raised in an appeal that is pending (in other words, the appeals court has not yet handed down a decision). See People v. Cooks, 67 N.Y.2d 100, 104, 491 N.E.2d 676, 678, 500 N.Y.S.2d 503, 505 (1986) (holding that if the record is sufficient for review of the issue on direct appeal, the issue cannot be collaterally reviewed in an Article 440 motion); People v. Griffin, 115 A.D.2d 902, 904, 496 N.Y.S.2d 799, 801 (3d Dept. 1985) (denying the defendant’s Article 440 motion because judgment was already on appeal to the Appellate Division and defendant failed to demonstrate the existence of pertinent, new evidence not in the record). Remember, Article 440 is not a substitute for an appeal. However, you may complain in a Section 440.10 motion about an error without first appealing the error, if the record of your client’s trial does not contain sufficient facts to allow an appeals court to review the error. For example, if you have found new evidence that was not available at the time of the trial, and therefore was not included in the record, you may bring a Section 440.10 motion directly. N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney). But be very careful about deciding to appeal a decision on an Article 440 motion without first bringing a direct appeal. The sufficiency of the record will be decided by the reviewing court. If the court finds that the record was sufficient for direct appeal, the 440 motion will be dismissed and if you did not file or pursue a direct appeal, it may be too late to do so. See People v. Cooks, 67 N.Y.2d 100, 104, 491 N.E.2d 676, 678, 500 N.Y.S.2d 503, 505 (1986) (holding that if the defendant could have the raised issue on direct appeal, the judge must dismiss the Article 440 motion); N.Y. Crim. Proc. Law § 440.10 and Practice Commentaries (McKinney). Sometimes there may be doubt as to whether there are sufficient facts in the record from which an appeals court must decide. In such a case, you should be careful to perfect and file a timely direct appeal and not to rely only on an Article 440 motion.


      c.If your client failed to raise an error on appeal, either because they did not include the error in their appeal or because they simply did not appeal their conviction at all, you cannot raise that error in an Article 440 motion unless you have a good excuse for not raising the issue on appeal. See, e.g., People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 934–35 (1st Dept. 1990) (holding that the defendant’s failure to present his constitutional attack in his direct appeal foreclosed any consideration of it in an Article 440 motion); People v. Cunningham, 104 Misc. 2d 298, 304, 428 N.Y.S.2d 183, 188 (Sup. Ct. Bronx County 1980) (holding that a court must deny an Article 440 motion where a defendant could have but did not raise the issue on direct appeal, despite a subsequent retroactively effective change in the law regarding that issue). One example of a good excuse would be where the error was overlooked due to ineffective assistance of counsel (but if you believe your lawyer was ineffective because your lawyer did not tell you of your right to appeal, you must make a motion instead under N.Y. Crim. Proc. Law Section 460.30.). Another good excuse is where an appeal seemed useless due to the state of the law at the time, but the law changed later and courts applied the new law retroactively, and because of those changes, if your trial had occurred today, it would be considered fundamentally unfair. N.Y. Crim. Proc. Law §§ 440.10(2)(a), (3)(b), and Practice Commentaries (McKinney).


      d.The judge must deny your Section 440.10 motion if it is based on an issue that involves only the validity of your client’s sentence, rather than your client’s conviction. N.Y. Crim. Proc. Law § 440.10(2)(d) (McKinney). You must complain about your client’s sentence in a motion to set aside your sentence under N.Y. Crim. Proc. Law Section 440.20, not Section 440.10.


2)While a judge must deny your Section 440.10 motion in the four circumstances listed above, there are other circumstances in which a judge may deny, but is not required to deny, your Section 440.10 motion. N.Y. Crim. Proc. Law §§ 440.10 (3)(a)–(c) (McKinney). These circumstances are as follows:


      a.Your client did not preserve the issue for review on appeal. An issue is not preserved for review on appeal if your client failed to object to errors that occurred during trial, or failed to request a particular instruction or ruling on an issue, or failed to make facts that would support your client’s claim, which would have been discovered through due diligence, appear in the record, or in some way failed to make sure that an issue would appear in the trial record. See People v. Green, 177 A.D.2d 856, 857, 576 N.Y.S.2d 625, 626 (3d Dept. 1991) (holding that court properly denied § 440.10 motion where defendant could have challenged the prosecutor’s use of peremptory challenges to eliminate black jurors at trial, but did not, [440.10 issue was unrelated to separate appeal based on police information issue]); People v. Nuness, 151 A.D.2d 987, 988, 542 N.Y.S.2d 76, 77 (4th Dept. 1989) (holding that because defendant did not object at trial to prosecutor’s failure to turn over police notes or request a hearing to determine the existence of the notes, the issue was not preserved for appeal and could not be raised in a § 440.10 proceeding); People v. Craft, 123 A.D.2d 481, 482, 506 N.Y.S.2d 492, 493 (3d Dept. 1986) (holding that the shackling of the defendant in the presence of the jury was not a basis for a § 440.10 motion because defendant did not object at trial nor request an instruction to the jury to disregard the shackling); People v. Donovon, 107 A.D.2d 433, 443–44, 487 N.Y.S.2d 345, 352–53 (2d Dept. 1985) (holding that because the defendant did not claim at trial that his confession was obtained in violation of his right to counsel, the defendant could not raise this issue for the first time in a § 440.10 motion). The following are examples of some of the issues you may raise in an Article 440 motion even though the issues were not preserved for review on appeal.


                                i.You may complain that your client received ineffective assistance of counsel at trial. The New York Court of Appeals believes that an Article 440 motion is usually better suited than an appeal for an ineffective assistance of counsel claim because details of your lawyer’s performance at trial are not usually obvious from the trial record. See People v. Brown, 45 N.Y.2d 852, 853–54, 382 N.E.2d 1149, 1149–50, 410 N.Y.S.2d 287, 287 (1978) (observing that often the record does not provide enough information for appeal on effectiveness of counsel, so Article 440 motion is usually a better method for ineffectiveness of counsel claims); see also N.Y. Crim. Proc. Law § 440.10(3)(a) (McKinney). However, if the trial record does contain facts that would allow an appellate court to review a claim of ineffective assistance of counsel, you must raise the claim on direct appeal. See People v. Gonzalez, 158 A.D.2d 615, 615, 551 N.Y.S.2d 586, 587 (2d Dept. 1990) (denying Article 440 motion because ineffectiveness of counsel claims were based on matters in the record, so they should have been raised on direct appeal rather than in an Article 440 motion).


                                ii.A court may also grant a hearing on an issue in your motion if your client could not have raised the issue at trial because, at that time, your client could not have discovered the relevant facts. See People v. Qualls, 70 N.Y.2d 863, 865–66, 517 N.E.2d 1346, 1347, 523 N.Y.S.2d 460, 461–62 (1987) (finding defendant could not have discovered with due diligence evidence of prosecutorial misconduct based on the prosecutor’s misrepresentation of the substance of its cooperation agreement with a witness and its knowing use of perjured testimony, and thus was entitled to a hearing on his Article 440 motion). For example, in one Article 440 motion, a defendant complained that the prosecutor had not revealed an agreement to recommend a more lenient sentence for a prosecution witness in exchange for the witness’ testimony against the defendant. The trial court denied the motion on the ground that the defendant could have raised this issue at trial and the intermediate appellate court affirmed the trial court’s order. But the Court of Appeals disagreed, finding that the defendant could not have known of or discovered the agreement at the time of trial and, therefore, could not have raised the issue at trial. See People v. Qualls, 70 N.Y.2d 863, 865–66, 517 N.E.2d 1346, 1347, 523 N.Y.S.2d 460, 461–62 (1987).


                                iii.If your client did not alert the trial court to prejudicial or harmful newspaper publicity about your client’s case and, as a result, this negative publicity was not included in the record for the appeals court to review, a judge may decide to deny a Section 440.10 motion which raises this issue.


      b.A trial court has discretion to either entertain or reject a second motion to vacate the judgment as long as (1) the issue was not decided on direct appeal and (2) it was included in your first Article 440 motion. N.Y. Crim. Proc. Law § 440.10(3)(b) and Practice Commentary (McKinney). Again, there is an exception to this rule if the law has changed since your earlier motion and the change has been ruled to apply retroactively. N.Y. Crim. Proc. Law § 440.10(3)(b) and Practice Commentary (McKinney).


      c.The third situation where a trial court has discretion to grant or reject your motion is when your client could have raised this issue in a previous Section 440.10 motion, but failed to do so. Unless you can demonstrate good cause for failing to include the issue in your prior motion, the court will deny your second motion. N.Y. Crim. Proc. Law § 440.10(3)(c) and Practice Commentary (McKinney). It is important, therefore, that you include all possible grounds for complaint when drawing up your Section 440.10 motion since you may not be able to raise any claims you leave out in another Article 440 motion.


3)Alleging Omission of Rosario Materials – Rosario material is any recorded statement of a prosecution witness (including police officers) possessed by the police or prosecution that relates to the subject matter of the witness’ trial testimony. By law, the prosecutor must provide your client with statements that relate to the witness’ testimony at your trial. See People v. Rosario, 9 N.Y.2d 286, 289, 173 N.E.2d 881, 883–84, 213 N.Y.S.2d 448, 450–51 (1961) (finding that trial court should have turned over to defense counsel, on their request, statements given before trial by prosecution witnesses relating to their trial testimony, so that defense counsel could have used statements on cross-examination). If the prosecutor neglects to do so, and a court finds that there is a reasonable possibility that the failure to disclose materially contributed to a verdict against your client, the court will reverse your client’s conviction on appeal. People v. Sorbello, 285 A.D.2d 88, 95–96, 729 N.Y.S.2d 747, 753 (2d Dept. 2001) (holding that § 240.75, which replaced the old per se reversible error rule that applied when a Rosario violation was found with a standard of harmless error, must apply retroactively to all cases that were being prosecuted or appealed as of its February 1, 2001 effective date). Likewise, if you raise the issue of omitted Rosario materials in an Article 440 motion, the court will reverse your client’s conviction only if you can prove the omission was not a “harmless error” (in other words, that the omission prejudiced your client’s defense). See People v. Jackson, 78 N.Y.2d 638, 641, 585 N.E.2d 795, 797, 578 N.Y.S.2d 483, 485 (1991) (stating that motion for post-conviction relief brought after direct appeal has been completed will only be successful if defendant can prove both improper conduct by prosecutor and prejudice to the defense); People v. Machado, 90 N.Y.2d 187, 192, 681 N.E.2d 409, 412, 659 N.Y.S.2d 242, 245 (1997) (holding that in an Article 440 motion, defendant/movant must prove that the failure to turn over Rosario material prejudiced the outcome of the defendant’s case, even if an appeal is pending at the time the Article 440 motion is filed). If you raise this claim for the first time in an Article 440 motion, you must demonstrate there was a reasonable possibility that the failure to disclose these statements contributed to the verdict against your client. See People v. Nikollaj, 155 Misc. 2d 642, 649, 589 N.Y.S.2d 1013, 1018 (Sup. Ct. Queens County 1992) (granting defendant new trial because prosecution’s withholding of Rosario materials prejudiced defendant’s case, and a reasonable probability existed that the violations contributed to the verdict); People v. Machado, 90 N.Y.2d 187, 192, 681 N.E.2d 409, 412, 659 N.Y.S.2d 242, 245 (1997) (stating that defendant/movant must prove the omission prejudiced his case and contributed to the verdict against him; conviction will not be automatically reversed regardless of whether defendant’s direct appeal is still pending or completed); People v. Vilardi, 76 N.Y.2d 67, 77–78, 555 N.E.2d 915, 920–21, 556 N.Y.S.2d 518, 523–24 (1990) (explaining that the standard for determining whether an omission of Rosario material was prejudicial is whether there was a “reasonable possibility” that prejudice resulted).


Furthermore, it is unlikely that a court will reverse your client’s conviction on this ground if the material withheld by the prosecution duplicates material in the record [See People v. Cortez, 184 A.D.2d 571, 573, 584 N.Y.S.2d 609, 611 (2d Dept. 1992) (finding that conviction need not be reversed if material withheld by prosecution is duplicative of other evidence contained in the record); People v. Ray, 140 A.D.2d 380, 382–83, 527 N.Y.S.2d 864, 866 (2d Dept. 1988) (stating that prosecution must prove that the undisclosed statements are indeed duplicative).], or if the prosecution merely delayed in producing the material. See People v. Blagrove, 183 A.D.2d 837, 837, 584 N.Y.S.2d 86, 87 (2d Dept. 1992) (stating that prosecution’s delay in turning over material relating to a prosecution witness’ testimony will only result in a reversal if the defense was “substantially prejudiced” by the delay; and finding no delay where prosecution turned over Rosario material to the defense prior to the testimony of the witness to which the material pertained). However, courts construe “duplication” very narrowly. Unless the excluded material appears in the record in nearly identical form, the court will probably not reject your claim on the grounds that the Rosario material that was not disclosed nor was duplicative. See People v. Young, 79 N.Y.2d 365, 370–71, 591 N.E.2d 1163, 1166–67, 582 N.Y.S.2d 977, 980–81 (1992) (finding that two documents cannot be duplicative if there are variations or inconsistencies between them, including omissions; exception to automatic reversal rule for duplicate material should be read very narrowly to apply when material is in fact a duplication of material in the record).


4)When You May File a Motion to Set Aside a Sentence under Section 440.20 – Like a motion to vacate a judgment under Section 440.10, you do not have to wait until you have appealed your client’s conviction to make a motion to vacate your client’s sentence under Section 440.20. You can make this motion any time after your client’s sentencing. N.Y. Crim. Proc. Law § 440.20(1) and Practice Commentary (McKinney & Supp.) But, if your client challenged their sentence when they appealed their conviction and lost, you cannot challenge your client’s sentence again through a Section 440.20 motion. See, e.g., People v. Chapman, 115 A.D.2d 911, 911, 496 N.Y.S.2d 588, 588 (3d Dept. 1985) (finding that appeal to set aside sentence bars the Article 440 motion). There is an exception to this rule that applies if the law has changed since your appeal and the new law is made retroactive. N.Y. Crim. Proc. Law § 440.20(3) (McKinney). In addition, the judge may deny your motion if the issue was decided in a previous Section 440.20 motion or a similar non-appeal proceeding, such as a habeas corpus motion. The court may grant a motion, however, if it is in the interest of justice and good cause is shown. Id.






Preparation of Article 440 Motion Documents


Whether you are making a motion to vacate a judgment or set aside your client’s sentence, you will need at least two documents. The first document is a “Notice of Motion.” It informs the court that you are challenging your client’s conviction and/or sentence and also states the basis for your challenge. The second document is an “affidavit.” This is a statement of facts made by someone with firsthand knowledge of the facts. Your client, a witness at your trial, or someone else who knows facts that will convince the court your client’s conviction or sentence was improper can prepare and swear to an affidavit. A witness affidavit would look almost the same as the defendant’s affidavit, except that the witness must identify himself and explain why he is aware of the facts to which he is swearing. To write an effective affidavit, you must do more than make general claims such as “I was deprived of my constitutional right to counsel” or “the officer had no probable cause to arrest me.” If either of these claims is the basis for your motion, you must detail the specific circumstances under which your client was denied counsel or state in a clear and detailed manner what led to your client’s arrest. For example, if your client requested a lawyer at trial and the judge told your client that they were not entitled to a lawyer, you should include in your client’s affidavit the name of the judge, the exact words he or she used (if your client can remember them), the date (or approximate date) that the statement was made, and the names of any witnesses who heard the judge (or representative) make the statement.


If a judge thinks that there is no reasonable possibility that the facts stated in your client’s or a witness affidavit are true, he or she will deny your motion. See People v. Selikoff, 35 N.Y.2d 227, 244, 318 N.E.2d 784, 795, 360 N.Y.S.2d 623, 638 (1974) (denying motion based on incredible and unsubstantiated claim that trial judge, deceased at time of motion, had made an off-the-record sentencing promise to defendant). But see People v. Seminara, 58 A.D.2d 841, 843, 396 N.Y.S.2d 472, 475 (2d Dept. 1977) (granting motion for hearing where defendant claimed that judge’s law secretary made probation promise to defendant and claim was supported by affidavit from his trial attorney). Therefore, you should be as detailed and precise about the facts of your client’s story as possible. In addition, if any witnesses are available, you should have them write affidavits that support your client’s story. You should also be careful to include all of the possible grounds or issues on which your client could bring an Article 440 motion. N.Y. Crim. Proc. Law § 440.30(1) (McKinney & Supp.). If you leave one out, a court will probably not allow your client to raise the ground in a later motion. N.Y. Crim. Proc. Law § 440.10(3)(c) (McKinney & Supp.).


Your client or witnesses must swear in the presence of a notary that the facts stated in their affidavit are true. N.Y. Crim. Proc. Law § 440.30(1) (McKinney & Supp.). If the prison officials refuse to provide your client with a notary, they should sign in their own name at the bottom of the form. You client should also ask a friend to watch (witness) they sign the affidavit and have their friend sign his or her own name under the line that reads “sworn to before me” at the end of the affidavit. Finally, your client should write an explanation under the signature of the friend who witnessed their signature regarding the fact that the prison officials refused to provide a notary. This situation would only arise if your client was detained and you were unable to visit.


When to File


While there is no statute of limitations (time limit) for making an Article 440 motion [See People v. Corso, 40 N.Y.2d 578, 580, 357 N.E.2d 357, 359, 388 N.Y.S.2d 886, 889 (1976) (holding that there is no time limit on § 440.10 claims)], a court may not grant your motion if you wait too long after your client’s sentencing to make your motion. See People v. Wilson, 81 Misc. 2d 739, 740, 365 N.Y.S.2d 961, 962–63 (Sup. Ct. Nassau County 1975) (denying motion to vacate judgment, and finding that fact that defendant waited almost five years to complain of his conviction was a “significant factor”); People v. Byrdsong, 161 Misc. 2d 232, 236, 613 N.Y.S.2d 543, 545 (Sup. Ct. Queens County 1994) (declaring that a post-conviction motion filed nine years after trial and seven years after appeals was, in the interest of finality, a time period too great to continue further litigation). For example, one court denied a Section 440.10 motion that was made three years after the defendant’s conviction because the defendant could not explain why he could not have discovered the facts underlying his claim earlier. See People v. Friedgood, 58 N.Y.2d 467, 470–71, 448 N.E.2d 1317, 1319, 462 N.Y.S.2d 406, 408 (1983). Furthermore, Article 440 itself requires you to make a motion based on the ground of newly discovered evidence within a reasonable time after the new evidence is discovered. N.Y. Crim. Proc. Law § 440.10(1)(g) (McKinney & Supp.).


Where to File


An Article 440 motion must be brought in the trial court where your client was convicted. It cannot be brought in the court of another county where your client happens to be imprisoned. To file your motion, mail (or file in person) your Notice of Motion, your affidavit(s), and all supporting documents to the clerk of the court in which you were convicted. If your client’s trial was moved to a different county (for example, to avoid pretrial publicity), you should send your motion to the court in the county where your client was indicted. See People v. Klein, 96 Misc. 2d 564, 566, 409 N.Y.S.2d 374, 375–76 (Sup. Ct. Suffolk County 1978) (holding the appropriate venue for a hearing in the nature of coram nobis would be in the county of the indictment, rather than the county to which the case was transferred for the purpose of trial). You must also send a copy of your papers to the district attorney of the county in which your client was convicted.


What to Expect After an Article 440 Motion is Filed


Once you have filed your client’s motion, the district attorney will ordinarily file an answer to

the motion with the judge who received your motion. The district attorney must also send you a copy of the answer. N.Y. Crim. Proc. Law § 440.30(1) (McKinney). The answer will usually deny some or all of the allegations in your motion and supporting papers.


After reviewing the facts and arguments set forth in your motion and supporting affidavits, and in the district attorney’s answer, the judge may grant or deny your motion, or hold a hearing. If your papers state a legal ground for vacating the judgment or setting aside your client’s sentence, and the facts in support of that ground are not disputed, the judge will grant your motion. N.Y. Crim. Proc. Law § 440.30(3) (McKinney). If your papers do not state a legal ground for vacating the judgment or setting aside your client’s sentence, or lack facts to support a legal ground, the judge will deny your motion. See, e.g., People v. Risalek, 172 A.D.2d 870, 870, 568 N.Y.S.2d 172, 174 (3d Dept. 1991) (denying motion where defendant’s allegations of fraud and coercion were contradicted by transcripts and other allegations in motion were not supported by affidavits or other evidence and defendant failed to preserve the objection to the plea he knowingly entered into); People v. Portalatin, 132 A.D.2d 581, 582, 517 N.Y.S.2d 301, 302 (2d Dept. 1987)  denying hearing because allegations of prosecutorial misconduct were “not preserved” or without merit); People v. Batts, 96 A.D.2d 842, 842–43, 465 N.Y.S.2d 600, 601 (2d Dept. 1983) (denying motion for failure to set forth sufficient grounds to justify hearing). The judge will also deny your motion without a hearing if: (1) The facts used to support your motion are not supported by sworn statements (affidavits); (2) A fact necessary to support the motion is clearly shown to be false by documentary proof; or (3) A fact necessary to support the motion is contradicted by the record from your client’s trial or is made solely by client and unsupported by other evidence, and there is no reasonable possibility the allegations are true. N.Y. Crim. Proc. Law § 440.30(4) (McKinney).


Otherwise, the judge must grant a hearing on your motion. See, e.g., People v. Ferreras, 70 N.Y.2d 630, 631, 512 N.E.2d 301, 302, 518 N.Y.S.2d 780, 781 (1987) (finding that defendant who submitted personal affidavit supporting claim of ineffective counsel due to conflict of interest was entitled to hearing on motion). Whether the court grants your client a hearing or not, the court must state for the official record what facts it found to be true, how it viewed the law, and why it decided the way it did. N.Y. Crim. Proc. Law § 440.30(7) (McKinney).


If the judge decides to hold a hearing, your client has the right to attend this hearing, although this right may waived. N.Y. Crim. Proc. Law § 440.30(5) (McKinney). Since at your client’s hearing you will bear the burden of proof, meaning you will have the responsibility of proving that your client’s claims are true [N.Y. Crim. Proc. Law § 440.30(6) (McKinney)], it is not recommended that one waive the right to appear. To meet the burden of proof, you must persuade the judge that the facts of your client’s story are true by a “preponderance of the evidence,” which means that the facts are more likely than not to be true. See, e.g., People v. Richard, 156 A.D.2d 270, 548 N.Y.S.2d 659, 660 (1st Dept. 1989) (denying defendant’s Article 440 motion because claims were not supported by the required preponderance of evidence). To state your responsibility more simply, you must convince the judge that the evidence supporting

your client’s claim outweighs the evidence against your claim.


Even if the hearing convinces the court that the facts stated in your motion and affidavit are true, the court will not automatically grant your motion. The facts that you use must also persuade the judge that your conviction or sentence was unfair. See, e.g., People v. Lehrman, 155 A.D.2d 693, 693, 548 N.Y.S.2d 260, 261 (2d Dept. 1989) (finding defendant failed to demonstrate that jury misconduct impaired his right to trial); People v. Rhodes, 92 A.D.2d 744, 745, 461 N.Y.S.2d 81, 83 (4th Dept. 1983) (stating to prevail on Article 440 motion based on claim of juror misconduct, defendant must not only prove misconduct by a preponderance of the evidence, but also show that the misconduct created a substantial risk of prejudice); People v. Dean, 125 A.D.2d 948, 949, 510 N.Y.S.2d 41, 41 (4th Dept. 1986) (denying Article 440 motion because defendant could have raised issue on appeal and defendant failed to show denial of due process).






Relief that the Court Can Provide Under Article 440


     1)Motion to Vacate Judgment – In deciding an Article 440.10 motion, the court has several options: (1) As noted above, even if the court finds that the facts stated are true, the court may deny your motion if the court does not find that your client’s conviction was unfair [See, e.g., People v. Lehrman, 155 A.D.2d 693, 693, 548 N.Y.S.2d 260, 261 (2d Dept. 1989) (finding defendant failed to demonstrate that jury misconduct impaired his right to trial); People v. Rhodes, 92 A.D.2d 744, 745, 461 N.Y.S.2d 81, 83 (4th Dept. 1983) (stating to prevail on Article 440 motion based on claim of juror misconduct, defendant must not only prove misconduct by a preponderance of the evidence, but also show that the misconduct created a substantial risk of prejudice); People v. Dean, 125 A.D.2d 948, 949, 510 N.Y.S.2d 41, 41 (4th Dept. 1986) (denying Article 440 motion because defendant could have raised issue on appeal and defendant failed to show denial of due process).]; (2) The court may grant your Article 440.10 motion to vacate judgment and dismiss the indictment or charge against you, entitling you to be released from prison, or to be more likely to receive a new trial [N.Y. Crim. Proc. Law § 440.10(4) (McKinney)]; or (3) If your motion raises new evidence, the judge may vacate the judgment and order a new trial [N.Y. Crim. Proc. Law § 440.10(5)(a) (McKinney)], or she may reduce your conviction to one for a lesser included offense, provided the district attorney agrees. N.Y. Crim. Proc. Law § 440.10(5)(b) (McKinney).


     2)Motion to Set Aside Sentence – If the judge decides to grant your motion to set aside your client’s sentence under Section 440.20, he or she will not change your client’s underlying conviction. The court must resentence you in accordance with the New York Penal Code’s guidelines and limits for sentences.


Appealing the Denial When an Article 440 Motion is Denied


There is no automatic right to appeal a denial of an Article 440 motion to an intermediate appellate court (in New York, this is the Appellate Division). See People v. Farrell, 85 N.Y.2d 60, 70, 647 N.E.2d 762, 768, 623 N.Y.S.2d 550, 556 (1995). However, one has the right to appeal an order that sets aside a sentence after the district attorney makes an Article 440 motion under § 440.40 for the purpose of seeking a longer sentence against a defendant. N.Y. Crim. Proc. Law § 450.10(4) (McKinney). To appeal, therefore, you must request leave (permission) from a judge of the intermediate appellate court to which you want to appeal. N.Y. Crim. Proc. Law § 460.15 (McKinney). You must request permission within thirty days after you receive a copy of the court’s order denying your Article 440 motion. N.Y. Crim. Proc. Law § 460.10(4)(a) (McKinney). If the judge of the appellate court grants you permission to appeal, you will receive a certificate indicating that you may appeal. N.Y. Crim. Proc. Law § 460.15 (McKinney). In order to apply for a certificate, you must also check the appropriate appellate division rules for the department where the intermediate appellate court you are appealing to is located. N.Y. Crim. Proc. Law § 460.15(2) (McKinney). Within fifteen days after you receive this certificate, you must file the certificate and a notice of appeal in the court that denied your Article 440 motion. N.Y. Crim. Proc. Law § 460.10(4)(b) (McKinney). You must also serve the certificate and notice of appeal upon the district attorney of the county where your trial court is located. N.Y. Crim. Proc. Law § 460.10(4)(b) (McKinney). Once you have completed these steps, you have “taken” your appeal.


You should be aware that judges seldom grant permission to appeal from denials of Article 440 motions. Nonetheless, it is essential that you seek leave to appeal from a denial of your Article 440 motion. Such an appeal is absolutely necessary to satisfy the exhaustion requirements for raising a claim in a federal habeas corpus petition.


If a judge of the intermediate court denies you permission to appeal, the appeals process ends at that stage and cannot be pursued further. N.Y. Crim. Proc. Law § 460.15 (McKinney). (Note, however, that you may still be able to raise your claim in a federal habeas corpus petition.) If you do receive permission to appeal and the appellate court then denies your appeal, you may appeal the denial to the New York Court of Appeals. N.Y. Crim. Proc. Law § 460.10(5) (McKinney). To do so, you must request permission to appeal from a judge of the Court of Appeals or relevant Appellate Division. You must make your request within thirty days after the intermediate appellate court hands down the denial you are trying to appeal. N.Y. Crim. Proc. Law §§ 460.10(5)(a), 460.20 (McKinney). Again, if you are granted permission to appeal, you will be issued a certificate indicating you have permission to appeal. Upon issuance of the certificate, your appeal is “taken.” N.Y. Crim. Proc. Law § 460.10(5)(b) (McKinney). Again, however, you must still perfect your appeal.


In addition, the district attorney has the right to appeal an Article 440 motion that sets

aside either your client’s conviction or sentence.





If your client has already appealed your case and lost, you cannot raise any issue already decided by the appellate court in the course of your client’s appeal. However, if your appeal is still pending, you can make an Article 440 motion. You can then make a motion to consolidate (combine) the appeal and the 440 motion in the interests of judicial economy. If you consolidate, the range of factual matter the court may examine will be expanded in the appeal, and all of the errors presented together may more convincingly persuade the court that your client’s trial was unfair.


Remember, you must prove that the facts stated in your motion and supporting affidavit(s) are true and that they state a legal ground that is serious enough to require a court to grant your motion. If you are claiming that the court made a mistake during the trial, you must show that the mistake affected your client’s chance of being found innocent, or that the mistake was so serious that defendants must be protected from this type of mistake, even if the mistake may not have affected your client’s verdict. If you could have raised a claim in an earlier Article 440 motion, or if you have already made an Article 440 motion on the same ground(s) and lost, a court will probably deny your present motion.


If you plead guilty at your trial, you will have a harder time succeeding on a motion to vacate judgment.

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Angel A. Castro, III, Esq.

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Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.


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