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ARTICLE 440--POST-JUDGMENT MOTIONS
Section 440.10 Motion to vacate judgment.
440.20 Motion to set aside sentence; by defendant.
440.30 Motion to vacate judgment and to set aside sentence;
procedure.
440.40 Motion to set aside sentence; by people.
440.50 Notice to crime victims of case disposition.
440.55 Notice to education department where a licensed
professional has been convicted of a felony.
440.60 Notification of invalid sentences of probation.
S 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
(h) The judgment was obtained in violation of a right of the
defendant under the constitution of this state or of the United States.
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; 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 unjustifiable failure to raise such
ground or issue upon an appeal actually perfected by him; 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
(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, 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. 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.
7. 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.
S 440.20 Motion to set aside sentence; by defendant.
1. At any time after the entry of a judgment, the court in which the
judgment was entered may, upon motion of the defendant, set aside the
sentence upon the ground that it was unauthorized, illegally imposed or
otherwise invalid as a matter of law. Where the judgment includes a
sentence of death, the court may also set aside the sentence upon any of
the grounds set forth in paragraph (b), (c), (f), (g) or (h) of
subdivision one of section 440.10 as applied to a separate sentencing
proceeding under section 400.27, provided, however, that to the extent
the ground or grounds asserted include one or more of the aforesaid
paragraphs of subdivision one of section 440.10, the court must also
apply subdivisions two and three of section 440.10, other than paragraph
(d) of subdivision two of such section, in determining the motion. In
the event the court enters an order granting a motion to set aside a
sentence of death under this section, the court must either direct a new
sentencing proceeding in accordance with section 400.27 or, to the
extent that the defendant cannot be resentenced to death consistent with
the laws of this state or the constitution of this state or of the
United States, resentence the defendant to life imprisonment without
parole or to a sentence of imprisonment for the class A-I felony of
murder in the first degree other than a sentence of life imprisonment
without parole. Upon granting the motion upon any of the grounds set
forth in the aforesaid paragraphs of subdivision one of section 440.10
and setting aside the sentence, the court must afford the people a
reasonable period of time, which shall not be less than ten days, to
determine whether to take an appeal from the order setting aside the
sentence of death. The taking of an appeal by the people stays the
effectiveness of that portion of the court`s order that directs a new
sentencing proceeding.
2. Notwithstanding the provisions of subdivision one, the court must
deny such a motion when the ground or issue raised thereupon was
previously determined on the merits upon an appeal from the judgment or
sentence, unless since the time of such appellate determination there
has been a retroactively effective change in the law controlling such
issue.
3. Notwithstanding the provisions of subdivision one, the court may
deny such a motion when the ground or issue raised thereupon 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
prior 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. Despite such determination, however,
the court in the interest of justice and for good cause shown, may in
its discretion grant the motion if it is otherwise meritorious.
4. An order setting aside a sentence pursuant to this section does
not affect the validity or status of the underlying conviction, and
after entering such an order the court must resentence the defendant in
accordance with the law.
S 440.30 Motion to vacate judgment and to set aside sentence;
procedure.
1. A motion to vacate a judgment pursuant to section 440.10 and a
motion to set aside a sentence pursuant to section 440.20 must be made
in writing and upon reasonable notice to the people. Upon the motion, a
defendant who is in a position adequately to raise more than one ground
should raise every such ground upon which he intends to challenge the
judgment or sentence. If the motion is based upon the existence or
occurrence of facts, the motion papers must contain sworn allegations
thereof, whether by the defendant or by another person or persons. Such
sworn allegations may be based upon personal knowledge of the affiant or
upon information and belief, provided that in the latter event the
affiant must state the sources of such information and the grounds of
such belief. The defendant may further submit documentary evidence or
information supporting or tending to support the allegations of the
moving papers. The people may file with the court, and in such case
must serve a copy thereof upon the defendant or his counsel, if any, an
answer denying or admitting any or all of the allegations of the motion
papers, and may further submit documentary evidence or information
refuting or tending to refute such allegations. After all papers of
both parties have been filed, and after all documentary evidence or
information, if any, has been submitted, the court must consider the
same for the purpose of ascertaining whether the motion is determinable
without a hearing to resolve questions of fact.
1-a. In cases of convictions occurring before January first, nineteen
hundred ninety-six, where the defendant`s motion requests the
performance of a forensic DNA test on specified evidence, and upon the
court`s determination that any evidence containing deoxyribonucleic acid
("DNA") was secured in connection with the trial resulting in the
judgment, the court shall grant the application for forensic DNA testing
of such evidence upon its determination that if a DNA test had been
conducted on such evidence, and if the results had been admitted in the
trial resulting in the judgment, there exists a reasonable probability
that the verdict would have been more favorable to the defendant.
2. If it appears by conceded or uncontradicted allegations of the
moving papers or of the answer, or by unquestionable documentary proof,
that there are circumstances which require denial thereof pursuant to
subdivision two of section 440.10 or subdivision two of section 440.20,
the court must summarily deny the motion. If it appears that there are
circumstances authorizing, though not requiring, denial thereof pursuant
to subdivision three of section 440.10 or subdivision three of section
440.20, the court may in its discretion either (a) summarily deny the
motion, or (b) proceed to consider the merits thereof.
3. Upon considering the merits of the motion, the court must grant it
without conducting a hearing and vacate the judgment or set aside the
sentence, as the case may be, if:
(a) The moving papers allege a ground constituting legal basis for
the motion; and
(b) Such ground, if based upon the existence or occurrence of facts,
is supported by sworn allegations thereof; and
(c) The sworn allegations of fact essential to support the motion are
either conceded by the people to be true or are conclusively
substantiated by unquestionable documentary proof.
4. Upon considering the merits of the motion, the court may deny it
without conducting a hearing if:
(a) The moving papers do not allege any ground constituting legal
basis for the motion; or
(b) The motion is based upon the existence or occurrence of facts and
the moving papers do not contain sworn allegations substantiating or
tending to substantiate all the essential facts, as required by
subdivision one; or
(c) An allegation of fact essential to support the motion is
conclusively refuted by unquestionable documentary proof; or
(d) An allegation of fact essential to support the motion (i) is
contradicted by a court record or other official document, or is made
solely by the defendant and is unsupported by any other affidavit or
evidence, and (ii) under these and all the other circumstances attending
the case, there is no reasonable possibility that such allegation is
true.
5. If the court does not determine the motion pursuant to
subdivisions two, three or four, it must conduct a hearing and make
findings of fact essential to the determination thereof. The defendant
has a right to be present at such hearing but may waive such right in
writing. If he does not so waive it and if he is confined in a prison
or other institution of this state, the court must cause him to be
produced at such hearing.
6. At such a hearing, the defendant has the burden of proving by a
preponderance of the evidence every fact essential to support the
motion.
7. Regardless of whether a hearing was conducted, the court, upon
determining the motion, must set forth on the record its findings of
fact, its conclusions of law and the reasons for its determination.
S 440.40 Motion to set aside sentence; by people.
1. At any time not more than one year after the entry of a judgment,
the court in which it was entered may, upon motion of the people, set
aside the sentence upon the ground that it was invalid as a matter of
law.
2. Notwithstanding the provisions of subdivision one, the court must
summarily deny the motion when the ground or issue raised thereupon was
previously determined on the merits upon an appeal from the judgment or
sentence, unless since the time of such appellate determination there
has been a retroactively effective change in the law controlling such
issue.
3. Notwithstanding the provisions of subdivision one, the court may
summarily deny such a motion when the ground or issue raised thereupon
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 sentence, unless since the time of such determination there
has been a retroactively effective change in the law controlling such
issue. Despite such circumstance, however, the court, in the interests
of justice and for good cause shown, may in its discretion grant the
motion if it is otherwise meritorious.
4. The motion must be made upon reasonable notice to the defendant
and to the attorney if any who appeared for him in the last proceeding
which occurred in connection with the judgment or sentence, and the
defendant must be given adequate opportunity to appear in opposition to
the motion. The defendant has a right to be present at such proceeding
but may waive such right in writing. If he does not so waive it and if
he is confined in a prison or other institution of this state, the court
must cause him to be produced at the proceeding upon the motion.
5. An order setting aside a sentence pursuant to this section does
not affect the validity or status of the underlying conviction, and
after entering such an order the court must resentence the defendant in
accordance with the law.
6. Upon a resentence imposed pursuant to subdivision five, the terms
of which are more severe than those of the original sentence, the
defendant`s time for taking an appeal from the judgment is automatically
extended in the manner prescribed in subdivision four of section 450.30.
S 440.50 Notice to crime victims of case disposition.
1. Upon the request of a victim of a crime, the district attorney
shall, within sixty days of the final disposition of the case, inform
the victim by letter of such final disposition. If such final
disposition results in the commitment of the defendant to the custody of
the department of correctional services, the notice provided to the
crime victim shall also inform the victim of his or her right to submit
a written, audiotaped, or videotaped victim impact statement to the
state division of parole or to meet personally with a member of the
state board of parole at a time and place separate from the personal
interview between a member or members of the board and the inmate and
make such a statement, subject to procedures and limitations contained
in rules of the board, both pursuant to subdivision two of section two
hundred fifty-nine-i of the executive law. The right of the victim under
this subdivision to submit a written victim impact statement or to meet
personally with a member of the state board of parole applies to each
personal interview between a member or members of the board and the
inmate.
2. As used in this section, "victim" means any person alleged or
found, upon the record, to have sustained physical or financial injury
to person or property as a direct result of the crime charged or a
person alleged or found to have sustained, upon the record, an offense
under article one hundred thirty of the penal law, or in the case of a
homicide or minor child, the victim`s family.
3. As used in this section, "final disposition" means an ultimate
termination of the case at the trial level including, but not limited
to, dismissal, acquittal, or imposition of sentence by the court, or a
decision by the district attorney, for whatever reason, to not file the
case.
S 440.55 Notice to education department where a licensed professional
has been convicted of a felony.
The district attorney shall give written notification to the
department of education upon the conviction of a felony of any person
holding a license pursuant to title eight of the education law. In
addition, the district attorney shall give written notification to the
department upon the vacatur or reversal of any felony conviction of any
such person.
S 440.60 Notification of invalid sentences of probation.
Whenever it shall appear to the satisfaction of the appropriate
director of the probation department that a person sentenced pursuant to
article sixty of the penal law has received a sentence which is invalid
as a matter of law, it shall become his duty to notify the district
attorney of the county in which such person was convicted. Upon such
notification, the district attorney shall immediately investigate the
matter and if such sentence of probation is in fact invalid as a matter
of law, the district attorney shall immediately move to set aside such
sentence pursuant to section 440.40 of this chapter.