In this article, former prosecutor and award-winning criminal appeals attorney Aaron Spolin explains how to obtain post-conviction relief in New York, pursuant to CPL 440.
To learn how Spolin & Dukes P.C. can handle your Motion to Vacate Judgment, call us at (866) 716-2805.
Appealing Your Conviction
After a conviction, a defendant may choose to file an appeal. A person who is convicted may seek to have another court review the conviction. The second court will be presented with a record of what occurred at trial, and the convicted individual may submit an appellate brief. An appellate brief contains arguments for why a conviction was improper. In the brief, the defendant will argue that the conviction was improper, and will request the appellate court vacate the conviction. The State is also entitled to file an appellate brief. The appellate court will generally (a) affirm the conviction; (b) reverse the conviction and return the matter for a new trial; (c) reverse the conviction and dismiss the charges
An appeal is generally limited to what happened at trial. Issues not raised at trial usually cannot be included in an appeal. The deadline to file a notice of appeal in New York is 30 days from the date of sentencing. If a Notice of Appeal is not timely filed, the appellate division will likely dismiss the appeal. Thus, if a defendant chooses to appeal his or her conviction, it is imperative to file a timely Notice of Appeal.
What Is a Motion to Vacate Judgment?
A Motion to Vacate Judgment (also known as a CPL 440 Motion, or as a 440 Motion) is another way to challenge a conviction. In a CPL 440 Motion, the burden is on the defendant to show, by a preponderance of evidence, that his or her conviction should be vacated. In other states, an inmate may file a writ of habeas corpus to challenge a conviction. The purpose of a writ of habeas corpus (Latin for “that you have the body”) is for the court to determine whether it has lawfully convicted and sentenced a person.
In New York, writs of habeas corpus are used in only limited circumstances. Most challenges to a conviction are brought with a CPL 440 Motion. CPL stands for “Criminal Procedure Law,” and 440 is a reference to statute 440. CPL section 440 is titled, “Motion to vacate judgment,” and lists the rules and requirements for a motion to vacate a conviction.
In a CPL 440 motion, a defendant seeks to establish that his or her prison sentence is illegal. While an appeal is considered a direct challenge to a conviction, a CPL 440 motion is considered a “collateral attack” (more on this below).
- Appealing Your Conviction
- How Is CPL 440 Different than an Appeal?
- The Statutory Grounds for a CPL 440 Motion
- Arguments that Can Overturn Convictions
- Post-Conviction Motions to Resentence
- How to Be Successful on Your 440 Motion
How Is CPL 440 Different than an Appeal?
An appeal identifies issues that are in the trial record. A CPL 440 Motion, on the other hand, identifies issues that are not in the trial record. This can include acts or omissions of the defense lawyer (e.g., failure to investigate), the existence of new evidence, prosecutorial misconduct, juror misconduct, etc. The common denominator is that these issues were not raised at trial, and could not have been raised at trial. It would be fundamentally unfair to imprison a defendant due to these issues. Thus, this is known as a “collateral attack,” since the issues raised are not found in the Record.
On direct appeal, arguments that are outside the record usually cannot be raised. If it is not clear whether the record contains enough facts, a defendant may simultaneously file an appeal with a CPL 440 motion, and then join the two together.
If an issue was raised on appeal, the issue cannot be raised again in a CPL 440 motion.
Is There a Deadline to File a CPL 440 Motion?
There is no deadline to file a CPL 440 motion. It is advised, however, to file the motion as soon as possible. This is because the court may deny the motion if a defendant waits too long to assert his or her rights. For example, in People v. Hanley, 255 A.D.2d 837 (3rd Dept. 1998), the court denied a motion to vacate judgment, when a defendant delayed for 3 years before seeking to vacate the judgment.
There is a second reason to not delay in filing a CPL 440 motion. There is a relatively short deadline to file a federal writ of habeas corpus. To file a federal writ, a defendant must typically first file a state writ of habeas corpus (again, in New York this is typically done with a CPL 440 motion). An undue delay in filing a state motion/writ may preclude the possibility of a future federal writ.
Thus, while there is no firm deadline to file a New York CPL 440 motion, it is recommended that this motion be filed as soon as practicable.
May More than One CPL 440 Motion Be Filed?
The general answer is no; only one CPL 440 motion may be filed. CPL 440.10(3)(c) provides that a motion may be denied if it contains arguments that could have been raised in a prior CPL 440 motion. Therefore, it is imperative for a defendant to include all potential arguments that are available in his or her first Motion to Vacate Judgment.
Spolin & Dukes P.C. takes these steps and more to fight for a successful appeal in court. To learn more about the appeal process, contact Aaron Spolin and his team at (866) 716-2805. We offer free initial consultations.
- Appealing Your Conviction
- How Is CPL 440 Different than an Appeal?
- The Statutory Grounds for a CPL 440 Motion
- Arguments that Can Overturn Convictions
- Post-Conviction Motions to Resentence
- How to Be Successful on Your 440 Motion
The Statutory Grounds for a CPL 440 Motion
The statute allows numerous issues to be raised in a CPL 440 motion:
- CPL 440.10(1)(a) — the court lacked jurisdiction over the defendant. This essentially means that the court had no power to convict the defendant. For example, if a crime was committed in New Jersey, by a suspect who lived in New Jersey, New York courts may not have had jurisdiction over the defendant. If the defendant was convicted in New York, the defendant can challenge the jurisdiction of the Court.
- CPL 440.10(1)(b) — the conviction was obtained through duress, misinterpretation, or fraud by the prosecutor or court or someone acting on their behalf.
- CPL 440.10(1)(c) — the prosecutor or judge knew that the evidence presented at trial was false.
- CPL 440.10(1)(d) — evidence used at trial was obtained in violation of the defendant’s constitutional rights (such as an improper search of the defendant).
- CPL 440.10(1)(e) — the defendant could not participate in and/or understand the proceedings, due to mental disease or defect.
- CPL 440.10(1)(f) — Improper and prejudicial conduct not appearing in the record occurred during the trial that resulted in the judgment, and, if such conduct had appeared in the record, it would have required a reversal of the judgment on appeal.
An example of this occurs when the prosecution fails to turn over exculpatory evidence (evidence that supports an accused’s defense) to the defendant. This is known as a “Brady violation” (see below for more information).
- CPL 440.10(1)(g) — the defendant has new evidence that was not available during the trial and the evidence creates a probability that had it been received at the trial, the verdict would have been more favorable to the defendant.
- CPL 440.10(1)(g-1) — (1) a defendant who pleaded guilty to an offense offers DNA evidence obtained after conviction that demonstrates a substantial probability that the defendant is actually innocent of the crime; or (2) a defendant convicted after trial offers DNA evidence obtained after trial that demonstrates a reasonable probability that had the evidence been entered at trial, the result would have been more favorable to the defendant.
- CPL 440.10(1)(h) — the judgment was obtained in violation of a constitutional right.
- CPL 440.10(1)(i) — the defendant’s participation in the offense was a result of being a victim of sex trafficking, labor trafficking, compelling prostitution, or human trafficking.
- CPL 440.10(1)(j) — the judgment was for a Class A or unclassified misdemeanor that was obtained prior to 2021 in violation of the defendant’s constitutional rights.
- CPL 440.10(1)(k) — the judgment occurred prior to the changes in New York’s controlled substances laws and is a conviction for a violation related to marijuana if more than three years have passed since the offense.
- Appealing Your Conviction
- How Is CPL 440 Different than an Appeal?
- The Statutory Grounds for a CPL 440 Motion
- Arguments that Can Overturn Convictions
- Post-Conviction Motions to Resentence
- How to Be Successful on Your 440 Motion
Effective Arguments to Overturn Convictions
Unlike an appeal, which identifies issues that are in the trial record, a Motion to Vacate Judgment identifies issues that are not in the trial record. Some common arguments that raised in this motion include ineffective assistance of counsel, prosecutorial misconduct, newly discovered evidence (including scientific evidence), jury misconduct, and claims of actual innocence.
Ineffective Assistance of Counsel
This is an issue that is commonly included in CPL 440 motions. There is a constitutional right to counsel, which includes effective assistance of counsel. Ineffective assistance of counsel refers to a situation where the trial attorney’s representation was so far below the professional standards for a lawyer that what he or she did was “unreasonable,” and, due to the errors, the defendant was deprived of a fair trial.
To support a claim of ineffective assistance of counsel, it is typically required that the defendant submit an affidavit from the trial attorney, explaining what the reasons were for his or her actions/omissions. A failure to include an affidavit from the previous attorney may result in an automatic dismissal of the CPL 440 motion. Depending on the facts of the case, an affidavit from the attorney is not always required. For example, if an attorney is disbarred, an affidavit is not required.
Some examples where there may be ineffective assistance of counsel include an attorney’s failure to interview a key defense witness, to file an important pre-trial motion to exclude evidence or testimony, or to review prosecution evidence. However, if the attorney’s conduct had no effect on the outcome of the trial, a court will not vacate the judgment.
Prosecutorial Misconduct
Including, but not limited to, submitting false evidence, or withholding evidence.
Brady Violation
The prosecution must provide exculpatory evidence to the defendant. This was established by the United States Supreme Court, in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held: “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Rosario Violation — this is based on the case People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). In that case, the New York Court of Appeals held that a prosecutor’s failure to provide a prior statement of a witness to be called at trial is an error, and a new trial is required. A Rosario error may be raised in a CPL 440 motion, though the defendant must show prejudice.
Newly Discovered Evidence
If the defendant discovers new evidence after the trial that creates a probability that, had the evidence been produced at trial, the outcome would have been more favorable to the defendant, the defendant may seek to vacate a verdict of guilt. This ground is not available to a defendant who pleads guilty. See People v. Tiger, 149 A.D.3d 86 (2nd Dept. 2017). It may be possible, however, to seek to vacate a guilty plea by arguing that the newly discovered evidence establishes actual innocence. In People v. Tiger, the appellate division wrote, “Here, however, the defendant consistently characterized her claim as based on actual innocence. She never characterized it as based on newly discovered evidence.”
The burden is on the defendant to show that the newly discovered evidence could not have been presented at trial, and that the verdict would have likely been more favorable to the defendant had the evidence been presented. While the general rule is that impeachment evidence (evidence contradicting or undermining a witness’s testimony) is not considered “newly discovered evidence,” the court may consider the impeachment evidence if it “is of such weight that it would ‘create a probability’ of a more favorable verdict (CPL 440.10 [1] [g]).” People v. Hargrove, 162 A.D.3d 25 (2d Dept. 2018).
DNA Evidence
Under 440.10(1)(g-1), a motion to vacate a judgment may be based on DNA testing that occurred after the judgment. If the defendant pleaded guilty to a charge, the court may vacate the judgment if it finds that the DNA evidence establishes a substantial probability that the defendant is “actually innocent” of the crime.
If the defendant was convicted after trial, the court may vacate the judgment if the results of the DNA testing show that there is a reasonable probability that, with the DNA evidence, the result of the trial would have been more favorable to the defendant. Note that a defendant convicted after trial does not have to show that the DNA evidence would establish his innocence; all that is required is that the evidence would have resulted in a “more favorable” outcome for the defendant.
Actual Innocence
In some New York cases, courts have held that a claim of “actual innocence” may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment that was obtained in violation of an accused’s constitutional rights. People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014). A claim of actual innocence is not available to a person who pleaded guilty to an offense unless it is in the context of new DNA evidence, discussed above.
Juror Misconduct or Bias
If a defendant discovers after trial that a juror committed misconduct or was biased in favor of the prosecution, a claim may be made under CPL 440.10 to vacate the judgment. Misconduct may occur if a juror, for example, conducted an investigation on his or her own into the crime or consulted a person other than another juror to determine guilt or innocence.
Juror bias may also support vacating the judgment. The bias need not be established directly, such as a statement by the juror. The defendant may show an “implied bias,” which may be demonstrated when, for example, a juror had applied for a job as a district attorney but did not inform the court. In another case, a court held that evidence that a juror sent a romantic letter to the prosecutor’s trial preparation assistant warranted a hearing on whether the juror was biased in favor of the prosecution.
- Appealing Your Conviction
- How Is CPL 440 Different than an Appeal?
- The Statutory Grounds for a CPL 440 Motion
- Arguments that Can Overturn Convictions
- Post-Conviction Motions to Resentence
- How to Be Successful on Your 440 Motion
Post-Conviction Motions to Resentence
A defendant may seek to set aside a sentence, and be resentenced, pursuant to CPL 440.20. This motion does not seek to reverse the conviction, and instead seeks a resentencing. If the motion is successful, the court will order the defendant to be resentenced. This type of motion may be made if the sentence is illegal or unlawful.
The Procedure for Filing a 440 Motion
The motion to vacate judgment includes a Notice of Motion an Affirmation, and/or an Affidavit. The motion must include specific factual details and legal arguments.
The motion must be presented to the prosecution, which does not have to file a response. A hearing may be held if the court determines that the motion raises issues of fact. Even if issues of fact are raised, at times the court will rule on the motion without a hearing. Despite the fact that during trial the burden of proof is on the prosecution, in a CPL 440 motion, the burden of proof is on the defendant.
Appealing a 440 Motion
The prosecution may appeal a granting of a CPL 440 motion. A defendant may not automatically appeal a denial of a CPL 440 motion. Instead, a defendant must request leave to appeal from the appellate division.
What is a Federal Writ of Habeas Corpus?
A Federal Writ of Habeas Corpus is the final avenue for review of issues that were denied in New York state courts. A Federal Writ must allege that a federal right was violated. Due to the 4th, 5th, 6th, and 14th Amendments of the Constitution, most claims concern federal constitutional rights that were violated. For example, since there is a federal right to effective assistance of counsel, a claim for ineffective assistance of counsel may be raised in a Federal Writ of Habeas Corpus.
The Federal Court will usually reject a Federal Writ of Habeas Corpus if a motion was not first filed and adjudicated in the State Court. The Federal Court will also usually reject a Writ of Habeas Corpus if the Court denied the motion because of a procedural issue, such as if the defendant waited for too long to file the State motion to vacate judgment.
- Appealing Your Conviction
- How Is CPL 440 Different than an Appeal?
- The Statutory Grounds for a CPL 440 Motion
- Arguments that Can Overturn Convictions
- Post-Conviction Motions to Resentence
- How to Be Successful on Your 440 Motion
How to Be Successful on Your 440 Motion
Writing a successful CPL 440 Motion requires skillful representation. Spolin & Dukes P.C. forcefully fights for its clients by reviewing the trial record, and, when possible:
By working with a seasoned appeals lawyer, you have someone who will be:
- Identifying meritorious arguments that should have been raised by the trial attorney.
- Identifying errors made by the trial attorney.
- Conducting a full investigation to determine the actual innocence of the client.
- Conducting a full investigation, to determine if any claims of ineffective assistance of counsel, prosecutorial misconduct, newly discovered evidence, jury misconduct, and claims of actual innocence are present.
- Arguing New York Law and U.S. Constitution Law, based on New York statutes and regulations, New York case law, and United States constitutional law.
An excellent attorney can make a difference. The more thoroughly the attorney reviews the record, and considers the facts and issues that were both raised and not raised at trial, the more bases the attorney can find to support the CPL 440 motion. We investigate the entire trial and pre-trial record to find every legal basis to support your motion.
Spolin & Dukes P.C.’s success rate is based on our strong desire to win each case we handle. Call us at (866) 716-2805 to learn how we can handle your CPL 440 Motion.