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 Law P.C. can handle your Motion to Vacate Judgment, call us at (866) 716-2805.


Appealing your Conviction

Aaron Spolin

Spolin Law P.C. is led by award-winning appeals attorney and former prosecutor Aaron Spolin.

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.

  1. Appealing your Conviction
  2. How is CPL 440 different than an appeal?
  3. The Statutory Grounds for a CPL 440 motion
  4. Arguments that Can Overturn Convictions
  5. Post-Conviction Motions to Resentence
  6. How to be Successful on your 440 Motion

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).

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 Law 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.

  1. Appealing your Conviction
  2. How is CPL 440 different than an appeal?
  3. The Statutory Grounds for a CPL 440 motion
  4. Arguments that Can Overturn Convictions
  5. Post-Conviction Motions to Resentence
  6. How to be Successful on your 440 Motion

The Statutory Grounds for a CPL 440 motion

The statute provides numerous issues that may be raised in a CPL 440 motion:

  • CPL 440.10(1)(a) – the court lacks jurisdiction over the defendant. This essentially means that the court had no power to convict the defendant. For example, if a crime is committed in New Jersey, by a suspect who lives in New Jersey, New York courts may not have jurisdiction over the defendant. If the defendant is convicted in New York, the defendant can challenge the jurisdiction of the Court.
  • CPL 440.10(1)(b) – “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”
  • CPL 440.10(1)(c) – when the prosecutor or judge knows that the evidence was false.
  • CPL 440.10(1)(d) – when evidence used was obtained in violation of the defendant’s constitutional rights.
  • CPL 440.10(1)(e) – the defendant could not participate in the proceedings, and/or did not understand what was going on, due to mental disease.
  • CPL 440.10(1)(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.”
    a. An example of this occurs when the prosecution fails to turn over exculpatory evidence to the defendant. This is known as a “Brady violation” (see below for more information).
  • CPL 440.10(1)(g) and (g-1)- new evidence or new DNA evidence. If the new evidence was not available during trial, and could not have been produced at trial, and the evidence “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.”
  • CPL 440.10(1)(h)- the judgment was obtained in violation of a constitutional right.
    1. Appealing your Conviction
    2. How is CPL 440 different than an appeal?
    3. The Statutory Grounds for a CPL 440 motion
    4. Arguments that Can Overturn Convictions
    5. Post-Conviction Motions to Resentence
    6. 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:

    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.

    A Brady violation and a Rosario violation may not be raised in a CPL 440 motion if the defendant pled guilty. See People v Knickerbocker, 230 A.D.2d753 (2d Dept. 1996).

    Newly Discovered Evidence:

    There is newly discovered evidence, a defendant may seek to vacate a verdict of guilt. This is not available to a defendant who pleads guilty. See People v. Tiger, 149 A.D.3d 86 (2d 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 is not considered to be “newly discovered evidence,” the court may consider the impeachment evidence If the impeachment evidence “where 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).

    Recanted testimony-New York courts do not look favorably on recanted testimony, and generally do no consider it to be reliable. There are times when a court will grant a hearing about the recanted testimony, to determine if it is considered reliable, and, therefore, newly discovered evidence. See People v. Jenkins, 84 A.D 3d 1403 (2d Dept. 2011) (granting hearing to determine the reliability of the lone witness’ recantation).

    DNA Evidence:

    CPL section 440.30 addresses DNA evidence. A defendant may request that certain evidence undergo DNA testing. The court will “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.” CPL section 1-a. A request for DNA testing is not available to someone who pled guilty.

    Actual Innocence:

    In New York, “no statutory authority exists for a court to consider a claim of actual innocence.” People v. Urena, 2019 NY Slip Op 50972 (Sup. Ct. New York County 2019). Some appellate divisions have held “that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10 (1) (h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights.” People v. Hamilton, 115 A.D.3d 12 (2d Dept. 2014).

    Withdraw a Guilty Plea: this may occur if the prosecution withholds evidence from the defendant, or a guilty plea is caused by ineffective assistance of counsel. If an involuntary guilty plea is clear from the Record, the claim must be raised on appeal.

    Juror misconduct:

    when a juror commits misconduct, a claim may be made under CPL 440.10. occurs when a jury commits misconduct. For example, in People v. Southall, 156 A.D.3d 111, 65 N.Y.S.3d 508 (1st Dept. 2017), the court held that there was an “implied bias” by a juror who applied for a job as a district attorney and did not reveal this information to the court. The court wrote: “Her knowledge that she was seeking a job at the DA’s Office, as well as her experience of crafting her argument in her cover letter to the DA’s Office that she would be an excellent prosecutor there, created a relationship between her and the DA’s office, which raised a high likelihood that she would be inclined to favor the People.”

    A second example: a romantic letter sent from a juror to the “People’s trial preparation assistant” warranted a hearing on whether the juror was biased in favor of the prosecution. See People v. Guillen, 179 A.D.3d 539 (1st Dept. 2020).

    1. Appealing your Conviction
    2. How is CPL 440 different than an appeal?
    3. The Statutory Grounds for a CPL 440 motion
    4. Arguments that Can Overturn Convictions
    5. Post-Conviction Motions to Resentence
    6. 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.

    1. Appealing your Conviction
    2. How is CPL 440 different than an appeal?
    3. The Statutory Grounds for a CPL 440 motion
    4. Arguments that Can Overturn Convictions
    5. Post-Conviction Motions to Resentence
    6. 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 Law P.C. forcefully fights for its clients by reviewing the trial record, and, when possible:

    Attorney Aaron Spolin discusses a petition.

    Award-winning CPL 440 Lawyers Aaron Spolin and Caitlin Dukes discuss strategies for a new case.

    By working with a seasoned appeals lawyer, you have someone who will:

    • 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 Law 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.