2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 440 - Post-Judgment Motions › 440.10 - Motion to Vacate Judgment.

§ 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
(g-1)  Forensic DNA testing of evidence performed since the entry of a
judgment, (1) in the case of a defendant convicted after a guilty  plea,
the   court  has  determined  that  the  defendant  has  demonstrated  a
substantial probability that the defendant was actually innocent of  the
offense  of  which  he  or  she  was  convicted, or (2) in the case of a
defendant convicted after a trial, the court has determined  that  there
exists  a  reasonable  probability that the verdict would have been more
favorable to the defendant.
(h) The judgment was obtained in violation of a right of the defendant
under the constitution of this state or of the United States; or
(i) The judgment is a conviction where the  defendant's  participation
in  the  offense was a result of having been a victim of sex trafficking
under section 230.34 of the penal law, sex trafficking of a child  under
section  230.34-a  of  the  penal  law,  labor trafficking under section
135.35 of the penal law,  aggravated  labor  trafficking  under  section
135.37 of the penal law, compelling prostitution under section 230.33 of
the  penal  law, or trafficking in persons under the Trafficking Victims
Protection Act (United States Code, title 22, chapter 78); provided that
(i) official documentation of the defendant's status as  a  victim  of
sex   trafficking,  labor  trafficking,  aggravated  labor  trafficking,
compelling prostitution, or trafficking in persons at the  time  of  the
offense  from a federal, state or local government agency shall create a
presumption that the defendant's participation  in  the  offense  was  a
result  of  having  been a victim of sex trafficking, labor trafficking,
aggravated labor trafficking, compelling prostitution or trafficking  in
persons,  but  shall  not  be  required for granting a motion under this
paragraph;
(ii) a motion under this  paragraph,  and  all  pertinent  papers  and
documents,  shall  be  confidential and may not be made available to any
person or public or private entity except where specifically  authorized
by the court; and
(iii) when a motion is filed under this paragraph, the court may, upon
the   consent  of  the  petitioner  and  all  of  the  state  and  local
prosecutorial agencies that prosecuted each matter, consolidate into one
proceeding a motion to vacate judgments imposed by distinct or  multiple
criminal courts; or
(j)  The  judgment  is  a  conviction  for  a  class A or unclassified
misdemeanor entered prior to the effective date of  this  paragraph  and
satisfies  the  ground  prescribed in paragraph (h) of this subdivision.
There shall be a rebuttable presumption that a  conviction  by  plea  to
such  an  offense  was  not knowing, voluntary and intelligent, based on
ongoing  collateral  consequences,   including   potential   or   actual
immigration  consequences,  and  there shall be a rebuttable presumption
that a conviction by verdict constitutes cruel  and  unusual  punishment
under  section  five  of  article one of the state constitution based on
such consequences; or
(k) The judgment occurred prior to the effective date of the  laws  of
two  thousand twenty-one that amended this paragraph and is a conviction
for an offense as defined in subparagraphs (i), (ii), (iii) or  (iv)  of
paragraph  (k)  of  subdivision three of section 160.50 of this part, in
which case the court shall presume that a conviction  by  plea  for  the
aforementioned offenses was not knowing, voluntary and intelligent if it
has  severe  or  ongoing  consequences,  including  but  not  limited to
potential or actual immigration consequences, and shall presume  that  a
conviction  by verdict for the aforementioned offenses constitutes cruel
and unusual punishment under section five of article one  of  the  state
constitution,  based  on  those consequences. The people may rebut these
presumptions.
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  unless  the  issue  raised  upon  such motion is
ineffective assistance of counsel. This paragraph shall not apply  to  a
motion under paragraph (i) of subdivision one of this section; 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 or her unjustifiable failure to raise
such ground or issue upon an appeal actually perfected  by  him  or  her
unless  the  issue  raised upon such motion is ineffective assistance of
counsel; 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 to a motion under paragraph (i)
of subdivision one of this section; 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 or six of this section, 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.  If  the court grants a motion under paragraph (i) or paragraph (k)
of subdivision one of this section, it  must  vacate  the  judgment  and
dismiss  the  accusatory instrument, and may take such additional action
as is appropriate in the circumstances. In the case of a motion  granted
under  paragraph  (i) of subdivision one of this section, the court must
vacate the judgment on the merits because the defendant's  participation
in the offense was a result of having been a victim of trafficking.
7.  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.
8.  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.
9.  Upon granting of a motion pursuant to paragraph (j) of subdivision
one of this section, the court may either:
(a) With the consent of the people, vacate the judgment or modify  the
judgment by reducing it to one of conviction for a lesser offense; or
(b)  Vacate  the  judgment and order a new trial wherein the defendant
enters a plea to the same offense  in  order  to  permit  the  court  to
resentence the defendant in accordance with the amendatory provisions of
subdivision one-a of section 70.15 of the penal law.