N.Y. Criminal Procedure Law § 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.