2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 440 - Post-Judgment Motions › 440.30 - Motion to Vacate Judgment and to Set Aside Sentence; Procedure.

§ 440.30 Motion to vacate judgment and to set aside sentence; procedure.
1.  (a)  A  motion  to vacate a judgment pursuant to section 440.10 of
this article and a motion to set aside a sentence  pursuant  to  section
440.20  of  this  article  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 or she 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 or her 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.
(b)  In  conjunction  with  the filing or consideration of a motion to
vacate a judgment pursuant to  section  440.10  of  this  article  by  a
defendant  convicted after a trial, in cases where the court has ordered
an evidentiary hearing upon such motion, the court may  order  that  the
people  produce  or  make  available  for  inspection  property  in  its
possession, custody, or control that was secured in connection with  the
investigation  or prosecution of the defendant upon credible allegations
by the defendant and a finding by  the  court  that  such  property,  if
obtained,  would be probative to the determination of defendant's actual
innocence, and that the request is reasonable. The court shall  deny  or
limit  such  a  request  upon a finding that such a request, if granted,
would threaten the integrity or chain of  custody  of  property  or  the
integrity  of  the processes or functions of a laboratory conducting DNA
testing, pose a risk of harm, intimidation, embarrassment, reprisal,  or
other  substantially  negative consequences to any person, undermine the
proper functions of law enforcement  including  the  confidentiality  of
informants,  or on the basis of any other factor identified by the court
in the interests of justice or public safety. The  court  shall  further
ensure  that any property produced pursuant to this paragraph is subject
to a protective order, where  appropriate.  The  court  shall  deny  any
request made pursuant to this paragraph where:
(i)  (1)  the  defendant's  motion  pursuant to section 440.10 of this
article does not seek to demonstrate his or her actual innocence of  the
offense  or  offenses  of  which  he  or  she was convicted that are the
subject of the motion, or (2) the defendant has not  presented  credible
allegations and the court has not found that such property, if obtained,
would  be  probative  to  the  determination  of  the defendant's actual
innocence and that the request is reasonable;
(ii) the defendant has made his or her motion after  five  years  from
the  date  of  the  judgment of conviction; provided, however, that this
limitation period shall be tolled for five years if the defendant is  in
custody  in connection with the conviction that is the subject of his or
her motion, and provided further that, notwithstanding  such  limitation
periods,  the  court may consider the motion if the defendant has shown:

(A) that he or she has been pursuing his or her  rights  diligently  and
that  some extraordinary circumstance prevented the timely filing of the
motion; (B) that the facts upon which  the  motion  is  predicated  were
unknown  to the defendant or his or her attorney and could not have been
ascertained by the exercise of due diligence prior to the expiration  of
the  statute of limitations; or (C) considering all circumstances of the
case including but not limited to evidence of the defendant's guilt, the
impact of granting or denying such motion upon public confidence in  the
criminal justice system, or upon the safety or welfare of the community,
and  the  defendant's  diligence  in  seeking  to  obtain  the requested
property or related relief, the interests of justice would be served  by
considering the motion;
(iii) the defendant is challenging a judgment convicting him or her of
an  offense  that  is not a felony defined in section 10.00 of the penal
law; or
(iv) upon a finding by the court that the property requested  in  this
motion would be available through other means through reasonable efforts
by the defendant to obtain such property.
1-a.  (a) (1) 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) Where the defendant's motion for forensic DNA testing of specified
evidence  is  made  following  a  plea  of  guilty and entry of judgment
thereon convicting him or her of: (A)  a  homicide  offense  defined  in
article one hundred twenty-five of the penal law, any felony sex offense
defined in article one hundred thirty of the penal law, a violent felony
offense  as defined in paragraph (a) of subdivision one of section 70.02
of the penal law, or (B) any other felony offense to  which  he  or  she
pled  guilty  after  being  charged  in  an indictment or information in
superior court with one or more of the offenses listed in clause (A)  of
this  subparagraph,  then  the  court shall grant such a motion upon its
determination that evidence containing DNA  was  secured  in  connection
with  the  investigation  or  prosecution of the defendant, and if a DNA
test had been conducted on such evidence and the results had been  known
to  the  parties prior to the entry of the defendant's plea and judgment
thereon, there exists a substantial probability that the evidence  would
have  established  the  defendant's  actual  innocence of the offense or
offenses that are the  subject  of  the  defendant's  motion;  provided,
however, that:
(i) the court shall consider whether the defendant had the opportunity
to  request  such testing prior to entering a guilty plea, and, where it
finds that the defendant had such opportunity and  unjustifiably  failed
to do so, the court may deny such motion; and
(ii)  a  court  shall  deny  the  defendant's  motion for forensic DNA
testing where the defendant has made his or her motion  more  than  five
years  after  entry  of  the  judgment  of  conviction;  except that the
limitation period may be tolled if the defendant has shown: (A) that  he
or  she  has  been  pursuing  his or her rights diligently and that some
extraordinary circumstance prevented the timely filing of the motion for
forensic DNA testing; (B) that  the  facts  upon  which  the  motion  is
predicated  were  unknown  to  the  defendant or his or her attorney and
could not have been ascertained by the exercise of due  diligence  prior

to the expiration of this statute of limitations; or (C) considering all
circumstances  of  the case including but not limited to evidence of the
defendant's guilt, the impact of granting or denying  such  motion  upon
public  confidence in the criminal justice system, or upon the safety or
welfare of the community, and the defendant's diligence  in  seeking  to
obtain  the  requested  property  or  related  relief,  the interests of
justice would be served by tolling such limitation period.
(b) In conjunction with the filing of a motion under this subdivision,
the  court  may  direct  the  people  to  provide  the  defendant   with
information  in  the  possession  of  the  people concerning the current
physical location  of  the  specified  evidence  and  if  the  specified
evidence  no  longer  exists  or  the physical location of the specified
evidence is unknown, a representation to that effect and information and
documentary evidence in the possession of the people concerning the last
known physical location of  such  specified  evidence.  If  there  is  a
finding by the court that the specified evidence no longer exists or the
physical   location   of   such  specified  evidence  is  unknown,  such
information in and of itself shall  not  be  a  factor  from  which  any
inference  unfavorable  to  the  people  may  be  drawn  by the court in
deciding a motion under this  section.  The  court,  on  motion  of  the
defendant,  may  also issue a subpoena duces tecum directing a public or
private hospital, laboratory or other entity to produce  such  specified
evidence  in  its possession and/or information and documentary evidence
in its possession concerning the location and status of  such  specified
evidence.
(c)  In  response to a motion under this paragraph, upon notice to the
parties and to the entity required to perform the search the  court  may
order  an  entity  that  has  access  to  the  combined DNA index system
("CODIS") or its successor system to compare a DNA profile obtained from
probative  biological  material  gathered   in   connection   with   the
investigation  or  prosecution of the defendant against DNA databanks by
keyboard searches, or a similar method that does not involve  uploading,
upon a court's determination that (1) such profile complies with federal
bureau  of investigation or state requirements, whichever are applicable
and as such requirements are applied to law enforcement agencies seeking
such a comparison, and that the data meet state DNA index system  and/or
national  DNA  index system criteria as such criteria are applied to law
enforcement  agencies  seeking  such  a  comparison  and  (2)  if   such
comparison  had  been conducted, and if the results had been admitted in
the trial resulting in the judgment,  a  reasonable  probability  exists
that  the verdict would have been more favorable to the defendant, or in
a case involving a plea of guilty, if the results had been available  to
the  defendant  prior  to the plea, a reasonable probability exists that
the  conviction  would  not  have  resulted.  For   purposes   of   this
subdivision,  a  "keyboard  search" shall mean a search of a DNA profile
against the databank in which  the  profile  that  is  searched  is  not
uploaded to or maintained in the databank.
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.