New York Article 440 Motion Defense Attorney

One of the hardest moments New Yorkers face is hearing a trial court return a verdict of guilty in a criminal case. It’s even harder when you don’t understand how that verdict was reached – or how it was even possible. What happened behind the scenes? Did police collect evidence incorrectly? Did prosecutors withhold important information? Did your own trial lawyer mess up? 

After a conviction or sentencing, you have options, but you need to act quickly. An Article 440 motion allows you to challenge a conviction and sentence in New York. An experienced New York criminal defense attorney can help you understand this process and diligently represent your legal rights.

What is an Article 440 Motion? 

An Article 440 motion gets its name from Article 440 of the New York Criminal Procedure Law (CPL), which provides post-judgment remedies allowing someone convicted or sentenced in a criminal case to bring a motion to the trial court, not an appellate court, to have the judgment vacated (CPL §440.10) or the sentence set aside (CPL §440.20).

Section 440.10 of the New York Criminal Procedure Law (CPL) states that ‘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’ one of several specific statutory conditions is met (e.g., lack of jurisdiction, fraud, false evidence, or constitutional violation).

• Jurisdiction. The court did not have jurisdiction over either the case or the defendant.
• Duress, misrepresentation or fraud. The judgment was reached via “duress, misrepresentation or fraud” by the court or by someone acting on behalf of the court or a prosecutor.
• Known false evidence. Evidence presented at trial that affected the judgment was false and the prosecutor or court knew it before entering the judgment.
• Violations of rights. Evidence presented at trial that affected the judgment was collected in violation of the defendant’s state or federal Constitutional rights. A court can also vacate a judgment on a 440 motion if the judgment itself was reached in violation of the defendant’s state or Constitutional rights. 
• Competency. The defendant couldn’t understand or participate in the proceedings due to a “mental disease or defect.” 
• Improper and prejudicial conduct. “Improper and prejudicial conduct” occurred during the trial, but isn’t present in the official trial record – but if it were, it would require the court to reverse its judgment on appeal. 
• New evidence. New evidence is subject to several limits. It must be evidence the defense couldn’t have obtained before the judgment. The new evidence must make it probable that the trial’s outcome would have been better for the defendant if the evidence had been available at trial. Rules regarding new evidence include DNA evidence. 
• Judgments in certain cases. Defendants who were victims of sex trafficking, convicted of class A or unclassified misdemeanors, and who face potential immigration consequences as a result of a plea or conviction. These rules can be complex; speak to an attorney to learn more. 
• The sentence is improper. Section 440.20 of the New York criminal statutes allows a court to accept a motion to set aside a criminal sentence. A sentence may be set aside if it is “unauthorized, illegally imposed or otherwise invalid as a matter of law.” 

Setting aside a sentence doesn’t change the fact of a conviction. A conviction remains on your record in most cases, carrying significant legal, economic, and personal consequences. 

Courts are limited in which Article 440 motions they can accept. New York law requires a court to deny an Article 440 motion when the issues raised were already decided on the merits upon a prior appeal, unless since the time of that appellate determination there has been a retroactively effective change in the controlling law (CPL § 440.10(2)(a)).

Courts are also allowed to deny an Article 440 motion in some situations. It’s important to speak to a Suffolk County criminal defense lawyer with experience handling Article 440 motions. 

How an Article 440 Motion Differs From an Appeal

Both an Article 440 motion and an appeal ask for a reconsideration of the case and a revisiting of the outcome. However, the motion and appeal operate in different ways and serve different purposes.

An Article 440 motion is filed with the trial court. The motion can be filed “at any time,” though it is most often filed after an appeal. The motion asks the trial court to reconsider its own case, often with the addition of information that wasn’t available at the time of trial, and to come to a new conclusion based on the added information. 

An appeal is filed with an appellate court. This is a new court, with a new set of judges and its own rules for hearing an appeal. In federal criminal cases, a defendant’s Notice of Appeal must be filed within 14 days of entry of the judgment (FRAP Rule 4(b)(1)(A)). The government has 30 days to file. In federal civil cases, a party generally has 30 days to file a Notice of Appeal (28 U.S.C. § 2107). State court deadlines may vary; for example, Massachusetts allows 30 days in criminal cases. Always verify the applicable jurisdiction and case type.

Both an Article 440 motion and an appeal play important roles in ensuring the criminal justice system comes to correct outcomes in every case. Without these tools, many New Yorkers could face wrongful convictions or improper sentences. These unjust outcomes can have lifelong consequences. 

What Does It Mean to Vacate a Judgment?

A vacated judgment isn’t identical to an acquittal. Rather, it resets the case to its status before it was decided. It returns a defendant to the status of “innocent until proven guilty.” 

After granting an Article 440 motion, a court must vacate the judgment. It must also either dismiss the indictment, order a new trial, or “take such other action as is appropriate under the circumstances.” Some exceptions apply, however, if the 440 motion involves new evidence or affects a victim of trafficking. 

Winning an Article 440 motion will affect your case. However, it’s important to understand the impact the motion will have on your specific situation. An experienced Manhattan criminal defense lawyer can help you work through these details. 

How Soon Should I File an Article 440 Motion?

Article 440 states that a motion can be filed “at any time” after a judgment is entered in a criminal case. The law doesn’t set a time limit, as it does for filing a Notice of Appeal. 

Often, the best option is to file an Article 440 motion as soon as possible once you’re aware of a possible way to challenge and vacate your conviction. Most courts expect a motion to be filed within a “reasonable” amount of time after a criminal case ends. What’s “reasonable” depends on the facts of your case – but moving quickly helps ensure that your actions look “reasonable.” 

Some Article 440 motions simply cannot be filed for years or even decades after trial. For example, some people who file Article 440 motions based on new DNA evidence do so because DNA evidence wasn’t available when they were convicted. Witnesses, videotape, and other evidence may not come to light for years after a criminal trial reaches a conclusion. An attorney can help you explain to a court that a long delay is “reasonable” when evidence simply wasn’t available, even if it’s been years. However, it’s best to contact a lawyer as soon as you can. Your attorney can help ensure that new evidence is preserved promptly, maximizing your chances to correct the outcome of your case. 

Speak to an Experienced New York 440 Motion Defense Lawyer Today at the Brill Legal Group

Many things can go wrong in a criminal trial. Some errors are genuine mistakes; others are deliberate attempts by police or prosecutors to win by improper means. No matter the source of the issue, you have options to challenge a wrongful conviction or an improper sentence. An Article 440 motion is one of those options. 

Reach out to an experienced New York Article 440 motion defense attorney today. The experienced New York criminal appeals lawyers at the Brill Legal Group will:

• File the necessary paperwork to preserve your right to file a 440 motion or to pursue an appeal.
• Thoroughly examine the transcripts, recordings, and other records in your case to identify errors. 
• Perform the research and craft the arguments required to secure the best possible outcome in your situation. 
• Preserve your right to move through the appeals process if your 440 motion fails. 
• Protect your legal rights and fight for you at every stage.

To learn more, contact our office today. Use our online chat tool, or call us at (212) 233-4141 to schedule a consultation with an experienced New York Article 440 motion and criminal defense lawyer.