Bertollini & O’Reilly
(212) 566-3572
Practice Areas Cases we Handle
International Business Litigation
International Family Law
Internet Law
Read our blog.
Contact Us Today
Please Select

Motion to Vacate a Criminal Judgment

Reopen your criminal case in New York

A motion for vacating a criminal conviction in New York can be filed, pursuant to N.Y.C.P. §440.10, at any time after the entry of a judgment, with the court in which it was entered. Section 440.10(1)(b) of the N.Y.C.P. is a partial codification of the writ of error coram nobis, an ancient English common law doctrine that the New York Court of Appeals rejuvenated in 1943 in Matter of Lyons v. Goldstein (a defendant who pleaded guilty to burglary in the third degree).

A 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 constitution of this state or of the United States.

The motion allows you to inform the trial court of facts that cannot be raised on appeal because they were not in the trial record, since facts presented for the first time on appeal cannot be considered by an appellate court.

The motion can be filed at any time after the entry of a judgment, with the court in which it was entered. 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. A motion under § 440.10 is not an appeal and is not a substitute for it.

Moreover, not every issue can be raised by a § 440 motion. Defendants in New York State have 30 days to file a notice of appeal from the date of sentence. A notice of appeal is a one-page document simply stating that one is appealing the judgment. If no notice of appeal is filed within 30 days, a defendant may file a motion to file a late notice of appeal within one year of the 30-day limit's expiration.

A motion to vacate judgment challenges the fairness and/or the legality of your conviction. It allows you to attack your conviction by stating that the trial court acted improperly when it found you guilty.

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 N.Y.C.P. § 440.10.

If you pleaded guilty, vacating the conviction reopens your case. This means that the State can recharge you and If you are trying to overturn a conviction based on a trial, the sentence cannot be increased the second time around unless there is some new circumstance that warrants the increase in sentence, such as new misconduct by the defendant.

If you want to reopen your criminal case in New York, you need to hire an Appellate Attorney to file a Motion 440.10 on your behalf. The Attorneys at Bertollini & O'Reilly have substantial experience handling criminal and immigration appeals.

For a free initial assessment of your case, please contact us or fill out a case evaluation form.

(212) 566-3572