What is a CPL 440.10 Motion?

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CPL 440.10 Motion is filed criminal cases to vacate the judgment of conviction. Unlike a direct appeal, that addresses things that went wrong during the trial based on the trial transcript, a CPL 440.10 motion isn’t just based on what happened at trial, but on everything else that happened in the case. This includes issues that were not part of the court transcript – either the trial or the plea.

The motion must be filed by Defense counsel. The Court on its own will not set aside a verdict pursuant to CPL 440.10. Importantly, the requirements of CPL 440.10 Motions are very strict and limiting. Non-compliance with requirements of Criminal Procedure Law 440.10, will result in the motion being denied by the judge without even considering the merits of the motion.

Although there is no limit on how many CPL 440.10 motions you can file on your case, the Court will look at two things to determine if they will consider any of the motions filed after the first one:

  1. First, the Courts will assess whether the issue has been brought up in your previous New York CPL 440.10 Motion. If it has, the Courts will deny any subsequent CPL 440.10 Motion on the grounds that the issue has previously been brought up and has been decided.
  2. Second, the Courts will assess whether you could have brought up the issue in a previous CPL 440.10 Motion. If your CPL 440.10 Motion is based on newly discovered evidence, that was not available at the time of filing of your first CPL 440.10 Motion despite your due diligence to locate it, then the Court won’t deny your CPL 440.10 Motion on the ground that you previously filed a CPL 440.10 Motion.

Therefore, if you are considering filing a CPL 440.10 motion for your case on your own and without the assistance of an attorney (this is called pro-se in New York), really think about it. The motion that you file most likely will preclude future motions that your attorney can make if you decide to retain counsel at a later time. You therefore may want to consider hiring an attorney to do your CPL 440.10 motion from the start, or at the very least hiring an attorney to review the pro-se motion that you intend on filing.

What are the reasons for vacating a judgment pursuant to a CPL 440.10 Motion?

New York Criminal Procedure Law 440.10 has very narrow and specific grounds on which Court may vacate a judgement of conviction. Specifically, the grounds for setting aside a judgment of conviction are:

  • The Court did not have jurisdiction of the action, or of the Defendant (CPL 440.10(1)(a)); OR
  • The judgement was obtained by duress, misrepresentation or fraud on the part of the Court or the Government, or anyone acting on behalf of the Court or the Government (CPL 440.10(1)(b)); OR
  • Material evidence introduced at a trial resulting in the conviction was false and was, prior to the entry of the verdict, known by the Government or by the Court to be false (CPL 440.10(1)(c)); OR
  • Material evidence introduced by the Government at a trial resulting in the conviction was obtained in violation of the Defendant’s rights under the Constitution of New York or the Constitution of the United States (CPL 440.10(1)(d)); OR
  • During the proceedings resulting in the judgment, the Defendant, by reason of mental disease or defect, was incapable of understanding or participating in his or her trial. This is related to the fitness to proceed under CPL 730. (CPL 440.10(1)(e)); OR
  • Improper and prejudicial conduct not appearing in trial transcript occurred during a trial, and resulted in the conviction AND had this conduct appeared in the record, it would have required a reversal of the conviction on appeal (CPL 440.10(1)(f)); OR
  • New evidence has been discovered since the entry of a judgment of conviction at trial AND this evidence could not have been produced by the defendant at the trial even with the Defendant’s due diligence AND new evidence creates a probability that had this evidence been introduced at trial, the verdict would have been more favorable to the Defendant. However, motion under this section must be made with due diligence after the discovery of such new evidence (CPL 440.10(1)(g)); OR
  • Forensic DNA testing of evidence performed since the entry of a judgment. In a case where the Defendant pleaded guilty, the evidence is of such nature as to demonstrate that the defendant was actually innocent of the offense s/he pleaded guilty to. In a case where the Defendant was convicted after a trial, the Defendant has to demonstrate that there exists a reasonable probability that the verdict would have been more favorable to the Defendant (CPL 440.10(1)(g-1)); OR
  • The conviction was obtained in violation of the Defendant’s rights under the New York State Constitution or the Constitution of the United States (CPL 440.10(1)(h)); OR
  • The conviction was for an arrest charge involving prostitution (Penal Law 240.37 – Loitering for the Purpose of Engaging in a Prostitution Offense, Penal Law 230.00 – Prostitution, or Penal Law 230.03 – Prostitution in a School Zone), AND the Defendant’s participation in the crime was a result of having been a victim of sex trafficking This section has additional requirements (CPL 440.10(1)(h)); OR
  • The 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 is 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 New York State Constitution based on such consequences (CPL 440.10(1)(j)); OR
  • The conviction occurred prior to the effective date of this paragraph and is a conviction for a Marihuana possession offense, in which case the court shall presume that a conviction by plea for the aforementioned offenses was not knowing, voluntary and intelligent if it has severe or ongoing consequences, including but not limited to potential or actual immigration consequences, and shall presume that a conviction by verdict for the aforementioned offenses constitutes cruel and unusual punishment under New York State Constitution based on those consequences. The people may rebut these presumptions (CPL 440.10(1)(k)).

For What Reason Can The Court Deny a 440.10 Motion?

As discussed above, a court can deny the CPL 440.10 motion if the procedural rules for filing the motion aren’t followed. Additionally, the motion must be supported by affidavits with individuals with personal knowledge about the matter. Usually, the Defendant’s affidavit in support of a CPL 440 Motion is insufficient as the only affidavit. That is because the courts deem affidavits from convicted individuals seeking to vacate their conviction to be self-serving and therefore unreliable.

Once again, if you are contemplating filing a CPL 440.10 motion on your own, really consider your decision to proceed without an attorney. You will not be permitted to raise issues in a subsequent 440.10 motions that should have been raised in your first one.

Reasons for Which the Court Must Deny a CPL 440.10 Motion

CPL 440.10(2) lists grounds on which the Court must deny a CPL 440.10 motion regardless of its merits.

  1. The ground or issue raised in the CPL 440.10 motion was previously decided on an appeal, unless there has been a retroactively effective change in the law that applies to the case; OR
  2. The judgment on the case is appealable or pending on appeal, AND sufficient facts appear on the record with respect to the ground or issue raised in the CPL 440.10 motion to permit adequate review of such issues on direct appeal; OR
  3. There was an unjustifiable failure to take or perfect an appeal by Defendant during the prescribed period or or unjustifiable failure to raise such issue upon direct appeal; OR
  4. The issue relates solely to the validity of the sentence and not to the validity of the conviction.

Reasons for Which the Court May Deny a CPL 440.10 Motion

Additionally, CPL 440.10(3) lists grounds on which the Court may deny a CPL 440.10 motion regardless of its merits.

  1. The defendant unjustifiably failed to address an issue prior to sentence and the issue in question was not subsequently determined on appeal; OR
  2. Issue raised in the CPL 440.10 motion was previously decided on its merits in a prior motion or court proceeding either in state or in federal court, other than a direct appeal from judgment. This section does not apply if there has been a retroactive change in the applicable law to the issue raised; OR
  3. Upon a previous CPL 440.10 motion, the defendant was in a position adequately to raise the issue, which is raised in the present motion but did not do so.

Although the Court may deny the motion under CPL 440.10(3), the Court should also consider the interests of justice. If it would be unjust to deny the motion which has merit, the Court has discretion to grant the motion.

When should a 440.10 motion be filed?

A New York CPL 440.10 motion can be brought at any time after sentencing on any constitutional or statutory grounds that could not have been raised on a direct appeal. Strategically, a CPL 440.10 motion should be filed before a direct appeal. That way, if a CPL 440.10 motion is denied, the denial can be incorporated into the direct appeal.

For example, let’s say one of the issues is ineffective assistance of counsel, you should first raise the issue through a CPL 440.10 motion. If the CPL 440.10 motion is denied, the affidavit which was part of the CPL 440.10 motion regarding the ineffective assistance of counsel can be incorporated into the direct appeal.

Questions Regarding a CPL 440.10 Motion

If you have any questions regarding CPL 440.10 motions, or would like us to help you with your motion, please contact us.