Experienced Attorney for New York Motion 440.10 Cases | Motion 440.10 to Vacate Criminal Judgment


Section 440.10 of the New York Criminal Procedure Law provides numerous grounds for vacating a criminal judgment. A motion for vacating a criminal conviction in New York can be filed, pursuant to N.Y.C.P.L. §440.10, at any time after the entry of a judgment, with the court in which it was entered.

In New York, a criminal judgment may be vacated only in limited case, when the defendant can prove, alternatively, that:

  1. The court did not have jurisdiction of the action or of the person of the defendant; or
  2. 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
  3. 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
  4. 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
  5. 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
  6. 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
  7. 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
  8. The judgment was obtained in violation of a right of the defendant under the New York constitution or of the United States.

A motion under § 440.10 to vacate a criminal judgment can be filed while still incarcerated or even after serving the convictions. In fact, in some cases the collateral consequences (such as deportation from the U.S. of non-citizens) of a criminal conviction are far worse than the penalty imposed by the criminal court.

If the court grants the motion, it must 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. Upon granting the motion upon the ground, 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: (1) Vacate the judgment and order a new trial; or (2) 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.

The statute also provides that the court may deny the motion if (1) facts could “with due diligence” have been made part of the record to allow for review on appeal; (2) the same issue was decided in a prior motion or proceeding (other than an appeal); or (3) the defendant unjustifiably failed to raise the issue on a prior motion under Criminal Procedure Law Section 440.10.

If you want to reopen or vacate your criminal case in New York, you need to hire a Criminal Immigration Lawyer with experience challenging convictions and sentences on appeal or by motion 440.10.