Legislation

Search OpenLegislation Statutes
This entry was published on 2021-11-19
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 440.10
Motion to vacate judgment
Criminal Procedure (CPL) CHAPTER 11-A, PART 2, TITLE M, ARTICLE 440
§ 440.10 Motion to vacate judgment.

1. At any time after the entry of a judgment, the court in which it
was entered may, upon motion of the defendant, vacate such judgment upon
the ground that:

(a) The court did not have jurisdiction of the action or of the person
of the defendant; or

(b) The judgment was procured by duress, misrepresentation or fraud on
the part of the court or a prosecutor or a person acting for or in
behalf of a court or a prosecutor; or

(c) Material evidence adduced at a trial resulting in the judgment was
false and was, prior to the entry of the judgment, known by the
prosecutor or by the court to be false; or

(d) Material evidence adduced by the people at a trial resulting in
the judgment was procured in violation of the defendant's rights under
the constitution of this state or of the United States; or

(e) During the proceedings resulting in the judgment, the defendant,
by reason of mental disease or defect, was incapable of understanding or
participating in such proceedings; or

(f) Improper and prejudicial conduct not appearing in the record
occurred during a trial resulting in the judgment which conduct, if it
had appeared in the record, would have required a reversal of the
judgment upon an appeal therefrom; or

(g) New evidence has been discovered since the entry of a judgment
based upon a verdict of guilty after trial, which could not have been
produced by the defendant at the trial even with due diligence on his
part and which is of such character as to create a probability that had
such evidence been received at the trial the verdict would have been
more favorable to the defendant; provided that a motion based upon such
ground must be made with due diligence after the discovery of such
alleged new evidence; or

(g-1) Forensic DNA testing of evidence performed since the entry of a
judgment, (1) in the case of a defendant convicted after a guilty plea,
the court has determined that the defendant has demonstrated a
substantial probability that the defendant was actually innocent of the
offense of which he or she was convicted, or (2) in the case of a
defendant convicted after a trial, the court has determined that there
exists a reasonable probability that the verdict would have been more
favorable to the defendant.

(h) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States; or

(i) The judgment is a conviction where the defendant's participation
in the offense was a result of having been a victim of sex trafficking
under section 230.34 of the penal law, sex trafficking of a child under
section 230.34-a of the penal law, labor trafficking under section
135.35 of the penal law, aggravated labor trafficking under section
135.37 of the penal law, compelling prostitution under section 230.33 of
the penal law, or trafficking in persons under the Trafficking Victims
Protection Act (United States Code, title 22, chapter 78); provided that

(i) official documentation of the defendant's status as a victim of
sex trafficking, labor trafficking, aggravated labor trafficking,
compelling prostitution, or trafficking in persons at the time of the
offense from a federal, state or local government agency shall create a
presumption that the defendant's participation in the offense was a
result of having been a victim of sex trafficking, labor trafficking,
aggravated labor trafficking, compelling prostitution or trafficking in
persons, but shall not be required for granting a motion under this
paragraph;

* (ii) a motion under this paragraph, and all pertinent papers and
documents, shall be confidential and may not be made available to any
person or public or private entity except where specifically authorized
by the court; and

* NB Effective January 15, 2022

(iii) when a motion is filed under this paragraph, the court may, upon
the consent of the petitioner and all of the state and local
prosecutorial agencies that prosecuted each matter, consolidate into one
proceeding a motion to vacate judgments imposed by distinct or multiple
criminal courts; or

(j) The judgment is a conviction for a class A or unclassified
misdemeanor entered prior to the effective date of this paragraph and
satisfies the ground prescribed in paragraph (h) of this subdivision.
There shall be a rebuttable presumption that a conviction by plea to
such an offense was not knowing, voluntary and intelligent, based on
ongoing collateral consequences, including potential or actual
immigration consequences, and there shall be a rebuttable presumption
that a conviction by verdict constitutes cruel and unusual punishment
under section five of article one of the state constitution based on
such consequences; or

(k) The judgment occurred prior to the effective date of the laws of
two thousand twenty-one that amended this paragraph and is a conviction
for an offense as defined in subparagraphs (i), (ii), (iii) or (iv) of
paragraph (k) of subdivision three of section 160.50 of this part, in
which case the court shall presume that a conviction by plea for the
aforementioned offenses was not knowing, voluntary and intelligent if it
has severe or ongoing consequences, including but not limited to
potential or actual immigration consequences, and shall presume that a
conviction by verdict for the aforementioned offenses constitutes cruel
and unusual punishment under section five of article one of the state
constitution, based on those consequences. The people may rebut these
presumptions.

2. Notwithstanding the provisions of subdivision one, the court must
deny a motion to vacate a judgment when:

(a) The ground or issue raised upon the motion was previously
determined on the merits upon an appeal from the judgment, unless since
the time of such appellate determination there has been a retroactively
effective change in the law controlling such issue; or

(b) The judgment is, at the time of the motion, appealable or pending
on appeal, and sufficient facts appear on the record with respect to the
ground or issue raised upon the motion to permit adequate review thereof
upon such an appeal unless the issue raised upon such motion is
ineffective assistance of counsel. This paragraph shall not apply to a
motion under paragraph (i) of subdivision one of this section; or

(c) Although sufficient facts appear on the record of the proceedings
underlying the judgment to have permitted, upon appeal from such
judgment, adequate review of the ground or issue raised upon the motion,
no such appellate review or determination occurred owing to the
defendant's unjustifiable failure to take or perfect an appeal during
the prescribed period or to his or her unjustifiable failure to raise
such ground or issue upon an appeal actually perfected by him or her
unless the issue raised upon such motion is ineffective assistance of
counsel; or

(d) The ground or issue raised relates solely to the validity of the
sentence and not to the validity of the conviction.

3. Notwithstanding the provisions of subdivision one, the court may
deny a motion to vacate a judgment when:

(a) Although facts in support of the ground or issue raised upon the
motion could with due diligence by the defendant have readily been made
to appear on the record in a manner providing adequate basis for review
of such ground or issue upon an appeal from the judgment, the defendant
unjustifiably failed to adduce such matter prior to sentence and the
ground or issue in question was not subsequently determined upon appeal.
This paragraph does not apply to a motion based upon deprivation of the
right to counsel at the trial or upon failure of the trial court to
advise the defendant of such right, or to a motion under paragraph (i)
of subdivision one of this section; or

(b) The ground or issue raised upon the motion was previously
determined on the merits upon a prior motion or proceeding in a court of
this state, other than an appeal from the judgment, or upon a motion or
proceeding in a federal court; unless since the time of such
determination there has been a retroactively effective change in the law
controlling such issue; or

(c) Upon a previous motion made pursuant to this section, the
defendant was in a position adequately to raise the ground or issue
underlying the present motion but did not do so.

Although the court may deny the motion under any of the circumstances
specified in this subdivision, in the interest of justice and for good
cause shown it may in its discretion grant the motion if it is otherwise
meritorious and vacate the judgment.

4. If the court grants the motion, it must, except as provided in
subdivision five or six of this section, vacate the judgment, and must
dismiss the accusatory instrument, or order a new trial, or take such
other action as is appropriate in the circumstances.

5. Upon granting the motion upon the ground, as prescribed in
paragraph (g) of subdivision one, that newly discovered evidence creates
a probability that had such evidence been received at the trial the
verdict would have been more favorable to the defendant in that the
conviction would have been for a lesser offense than the one contained
in the verdict, the court may either:

(a) Vacate the judgment and order a new trial; or

(b) With the consent of the people, modify the judgment by reducing it
to one of conviction for such lesser offense. In such case, the court
must re-sentence the defendant accordingly.

6. If the court grants a motion under paragraph (i) or paragraph (k)
of subdivision one of this section, it must vacate the judgment and
dismiss the accusatory instrument, and may take such additional action
as is appropriate in the circumstances.

7. Upon a new trial resulting from an order vacating a judgment
pursuant to this section, the indictment is deemed to contain all the
counts and to charge all the offenses which it contained and charged at
the time the previous trial was commenced, regardless of whether any
count was dismissed by the court in the course of such trial, except (a)
those upon or of which the defendant was acquitted or deemed to have
been acquitted, and (b) those dismissed by the order vacating the
judgment, and (c) those previously dismissed by an appellate court upon
an appeal from the judgment, or by any court upon a previous
post-judgment motion.

8. Upon an order which vacates a judgment based upon a plea of guilty
to an accusatory instrument or a part thereof, but which does not
dismiss the entire accusatory instrument, the criminal action is, in the
absence of an express direction to the contrary, restored to its
prepleading status and the accusatory instrument is deemed to contain
all the counts and to charge all the offenses which it contained and
charged at the time of the entry of the plea, except those subsequently
dismissed under circumstances specified in paragraphs (b) and (c) of
subdivision six. Where the plea of guilty was entered and accepted,
pursuant to subdivision three of section 220.30, upon the condition that
it constituted a complete disposition not only of the accusatory
instrument underlying the judgment vacated but also of one or more other
accusatory instruments against the defendant then pending in the same
court, the order of vacation completely restores such other accusatory
instruments; and such is the case even though such order dismisses the
main accusatory instrument underlying the judgment.

9. Upon granting of a motion pursuant to paragraph (j) of subdivision
one of this section, the court may either:

(a) With the consent of the people, vacate the judgment or modify the
judgment by reducing it to one of conviction for a lesser offense; or

(b) Vacate the judgment and order a new trial wherein the defendant
enters a plea to the same offense in order to permit the court to
resentence the defendant in accordance with the amendatory provisions of
subdivision one-a of section 70.15 of the penal law.