N.Y. CPL Law § 440.30 — New York Code / Act CPL / Part 2 / Title M / Article 440 / Section 440.30
Motion to vacate judgment and to set aside sentence; procedure
Status: in_force

§ 440.30 Motion to vacate judgment and to set aside sentence; procedure.\n  1. (a) A motion to vacate a judgment pursuant to section 440.10 of\nthis article and a motion to set aside a sentence pursuant to section\n440.20 of this article must be made in writing and upon reasonable\nnotice to the people. Upon the motion, a defendant who is in a position\nadequately to raise more than one ground should raise every such ground\nupon which he or she intends to challenge the judgment or sentence. If\nthe motion is based upon the existence or occurrence of facts, the\nmotion papers must contain sworn allegations thereof, whether by the\ndefendant or by another person or persons. Such sworn allegations may be\nbased upon personal knowledge of the affiant or upon information and\nbelief, provided that in the latter event the affiant must state the\nsources of such information and the grounds of such belief. The\ndefendant may further submit documentary evidence or information\nsupporting or tending to support the allegations of the moving papers.\nThe people may file with the court, and in such case must serve a copy\nthereof upon the defendant or his or her counsel, if any, an answer\ndenying or admitting any or all of the allegations of the motion papers,\nand may further submit documentary evidence or information refuting or\ntending to refute such allegations. After all papers of both parties\nhave been filed, and after all documentary evidence or information, if\nany, has been submitted, the court must consider the same for the\npurpose of ascertaining whether the motion is determinable without a\nhearing to resolve questions of fact.\n  (b) In conjunction with the filing or consideration of a motion to\nvacate a judgment pursuant to section 440.10 of this article by a\ndefendant convicted after a trial, in cases where the court has ordered\nan evidentiary hearing upon such motion, the court may order that the\npeople produce or make available for inspection property in its\npossession, custody, or control that was secured in connection with the\ninvestigation or prosecution of the defendant upon credible allegations\nby the defendant and a finding by the court that such property, if\nobtained, would be probative to the determination of defendant's actual\ninnocence, and that the request is reasonable. The court shall deny or\nlimit such a request upon a finding that such a request, if granted,\nwould threaten the integrity or chain of custody of property or the\nintegrity of the processes or functions of a laboratory conducting DNA\ntesting, pose a risk of harm, intimidation, embarrassment, reprisal, or\nother substantially negative consequences to any person, undermine the\nproper functions of law enforcement including the confidentiality of\ninformants, or on the basis of any other factor identified by the court\nin the interests of justice or public safety. The court shall further\nensure that any property produced pursuant to this paragraph is subject\nto a protective order, where appropriate. The court shall deny any\nrequest made pursuant to this paragraph where:\n  (i) (1) the defendant's motion pursuant to section 440.10 of this\narticle does not seek to demonstrate his or her actual innocence of the\noffense or offenses of which he or she was convicted that are the\nsubject of the motion, or (2) the defendant has not presented credible\nallegations and the court has not found that such property, if obtained,\nwould be probative to the determination of the defendant's actual\ninnocence and that the request is reasonable;\n  (ii) the defendant has made his or her motion after five years from\nthe date of the judgment of conviction; provided, however, that this\nlimitation period shall be tolled for five years if the defendant is in\ncustody in connection with the conviction that is the subject of his or\nher motion, and provided further that, notwithstanding such limitation\nperiods, the court may consider the motion if the defendant has shown:\n(A) that he or she has been pursuing his or her rights diligently and\nthat some extraordinary circumstance prevented the timely filing of the\nmotion; (B) that the facts upon which the motion is predicated were\nunknown to the defendant or his or her attorney and could not have been\nascertained by the exercise of due diligence prior to the expiration of\nthe statute of limitations; or (C) considering all circumstances of the\ncase including but not limited to evidence of the defendant's guilt, the\nimpact of granting or denying such motion upon public confidence in the\ncriminal justice system, or upon the safety or welfare of the community,\nand the defendant's diligence in seeking to obtain the requested\nproperty or related relief, the interests of justice would be served by\nconsidering the motion;\n  (iii) the defendant is challenging a judgment convicting him or her of\nan offense that is not a felony defined in section 10.00 of the penal\nlaw; or\n  (iv) upon a finding by the court that the property requested in this\nmotion would be available through other means through reasonable efforts\nby the defendant to obtain such property.\n  1-a. (a) (1) Where the defendant's motion requests the performance of\na forensic DNA test on specified evidence, and upon the court's\ndetermination that any evidence containing deoxyribonucleic acid ("DNA")\nwas secured in connection with the trial resulting in the judgment, the\ncourt shall grant the application for forensic DNA testing of such\nevidence upon its determination that if a DNA test had been conducted on\nsuch evidence, and if the results had been admitted in the trial\nresulting in the judgment, there exists a reasonable probability that\nthe verdict would have been more favorable to the defendant.\n  (2) Where the defendant's motion for forensic DNA testing of specified\nevidence is made following a plea of guilty and entry of judgment\nthereon convicting him or her of: (A) a homicide offense defined in\narticle one hundred twenty-five of the penal law, any felony sex offense\ndefined in article one hundred thirty of the penal law, a violent felony\noffense as defined in paragraph (a) of subdivision one of section 70.02\nof the penal law, or (B) any other felony offense to which he or she\npled guilty after being charged in an indictment or information in\nsuperior court with one or more of the offenses listed in clause (A) of\nthis subparagraph, then the court shall grant such a motion upon its\ndetermination that evidence containing DNA was secured in connection\nwith the investigation or prosecution of the defendant, and if a DNA\ntest had been conducted on such evidence and the results had been known\nto the parties prior to the entry of the defendant's plea and judgment\nthereon, there exists a substantial probability that the evidence would\nhave established the defendant's actual innocence of the offense or\noffenses that are the subject of the defendant's motion; provided,\nhowever, that:\n  (i) the court shall consider whether the defendant had the opportunity\nto request such testing prior to entering a guilty plea, and, where it\nfinds that the defendant had such opportunity and unjustifiably failed\nto do so, the court may deny such motion; and\n  (ii) a court shall deny the defendant's motion for forensic DNA\ntesting where the defendant has made his or her motion more than five\nyears after entry of the judgment of conviction; except that the\nlimitation period may be tolled if the defendant has shown: (A) that he\nor she has been pursuing his or her rights diligently and that some\nextraordinary circumstance prevented the timely filing of the motion for\nforensic DNA testing; (B) that the facts upon which the motion is\npredicated were unknown to the defendant or his or her attorney and\ncould not have been ascertained by the exercise of due diligence prior\nto the expiration of this statute of limitations; or (C) considering all\ncircumstances of the case including but not limited to evidence of the\ndefendant's guilt, the impact of granting or denying such motion upon\npublic confidence in the criminal justice system, or upon the safety or\nwelfare of the community, and the defendant's diligence in seeking to\nobtain the requested property or related relief, the interests of\njustice would be served by tolling such limitation period.\n  (b) In conjunction with the filing of a motion under this subdivision,\nthe court may direct the people to provide the defendant with\ninformation in the possession of the people concerning the current\nphysical location of the specified evidence and if the specified\nevidence no longer exists or the physical location of the specified\nevidence is unknown, a representation to that effect and information and\ndocumentary evidence in the possession of the people concerning the last\nknown physical location of such specified evidence. If there is a\nfinding by the court that the specified evidence no longer exists or the\nphysical location of such specified evidence is unknown, such\ninformation in and of itself shall not be a factor from which any\ninference unfavorable to the people may be drawn by the court in\ndeciding a motion under this section. The court, on motion of the\ndefendant, may also issue a subpoena duces tecum directing a public or\nprivate hospital, laboratory or other entity to produce such specified\nevidence in its possession and/or information and documentary evidence\nin its possession concerning the location and status of such specified\nevidence.\n  (c) In response to a motion under this paragraph, upon notice to the\nparties and to the entity required to perform the search the court may\norder an entity that has access to the combined DNA index system\n("CODIS") or its successor system to compare a DNA profile obtained from\nprobative biological material gathered in connection with the\ninvestigation or prosecution of the defendant against DNA databanks by\nkeyboard searches, or a similar method that does not involve uploading,\nupon a court's determination that (1) such profile complies with federal\nbureau of investigation or state requirements, whichever are applicable\nand as such requirements are applied to law enforcement agencies seeking\nsuch a comparison, and that the data meet state DNA index system and/or\nnational DNA index system criteria as such criteria are applied to law\nenforcement agencies seeking such a comparison and (2) if such\ncomparison had been conducted, and if the results had been admitted in\nthe trial resulting in the judgment, a reasonable probability exists\nthat the verdict would have been more favorable to the defendant, or in\na case involving a plea of guilty, if the results had been available to\nthe defendant prior to the plea, a reasonable probability exists that\nthe conviction would not have resulted. For purposes of this\nsubdivision, a "keyboard search" shall mean a search of a DNA profile\nagainst the databank in which the profile that is searched is not\nuploaded to or maintained in the databank.\n  2. If it appears by conceded or uncontradicted allegations of the\nmoving papers or of the answer, or by unquestionable documentary proof,\nthat there are circumstances which require denial thereof pursuant to\nsubdivision two of section 440.10 or subdivision two of section 440.20,\nthe court must summarily deny the motion. If it appears that there are\ncircumstances authorizing, though not requiring, denial thereof pursuant\nto subdivision three of section 440.10 or subdivision three of section\n440.20, the court may in its discretion either (a) summarily deny the\nmotion, or (b) proceed to consider the merits thereof.\n  3. Upon considering the merits of the motion, the court must grant it\nwithout conducting a hearing and vacate the judgment or set aside the\nsentence, as the case may be, if:\n  (a) The moving papers allege a ground constituting legal basis for the\nmotion; and\n  (b) Such ground, if based upon the existence or occurrence of facts,\nis supported by sworn allegations thereof; and\n  (c) The sworn allegations of fact essential to support the motion are\neither conceded by the people to be true or are conclusively\nsubstantiated by unquestionable documentary proof.\n  4. Upon considering the merits of the motion, the court may deny it\nwithout conducting a hearing if:\n  (a) The moving papers do not allege any ground constituting legal\nbasis for the motion; or\n  (b) The motion is based upon the existence or occurrence of facts and\nthe moving papers do not contain sworn allegations substantiating or\ntending to substantiate all the essential facts, as required by\nsubdivision one; or\n  (c) An allegation of fact essential to support the motion is\nconclusively refuted by unquestionable documentary proof; or\n  (d) An allegation of fact essential to support the motion (i) is\ncontradicted by a court record or other official document, or is made\nsolely by the defendant and is unsupported by any other affidavit or\nevidence, and (ii) under these and all the other circumstances attending\nthe case, there is no reasonable possibility that such allegation is\ntrue.\n  5. If the court does not determine the motion pursuant to subdivisions\ntwo, three or four, it must conduct a hearing and make findings of fact\nessential to the determination thereof. The defendant has a right to be\npresent at such hearing but may waive such right in writing. If he does\nnot so waive it and if he is confined in a prison or other institution\nof this state, the court must cause him to be produced at such hearing.\n  6. At such a hearing, the defendant has the burden of proving by a\npreponderance of the evidence every fact essential to support the\nmotion.\n  7. Regardless of whether a hearing was conducted, the court, upon\ndetermining the motion, must set forth on the record its findings of\nfact, its conclusions of law and the reasons for its determination.\n