Motion to vacate judgment

§ 440.10 Motion to vacate judgment.\n 1. At any time after the entry of a judgment, the court in which it\nwas entered may, upon motion of the defendant, vacate such judgment upon\nthe ground that:\n (a) The court did not have jurisdiction of the action or of the person\nof the defendant; or\n (b) The judgment was procured by duress, misrepresentation or fraud on\nthe part of the court or a prosecutor or a person acting for or in\nbehalf of a court or a prosecutor; or\n (c) Material evidence adduced at a trial resulting in the judgment was\nfalse and was, prior to the entry of the judgment, known by the\nprosecutor or by the court to be false; or\n (d) Material evidence adduced by the people at a trial resulting in\nthe judgment was procured in violation of the defendant's rights under\nthe constitution of this state or of the United States; or\n (e) During the proceedings resulting in the judgment, the defendant,\nby reason of mental disease or defect, was incapable of understanding or\nparticipating in such proceedings; or\n (f) Improper and prejudicial conduct not appearing in the record\noccurred during a trial resulting in the judgment which conduct, if it\nhad appeared in the record, would have required a reversal of the\njudgment upon an appeal therefrom; or\n (g) New evidence has been discovered since the entry of a judgment\nbased upon a verdict of guilty after trial, which could not have been\nproduced by the defendant at the trial even with due diligence on his\npart and which is of such character as to create a probability that had\nsuch evidence been received at the trial the verdict would have been\nmore favorable to the defendant; provided that a motion based upon such\nground must be made with due diligence after the discovery of such\nalleged new evidence; or\n (g-1) Forensic DNA testing of evidence performed since the entry of a\njudgment, (1) in the case of a defendant convicted after a guilty plea,\nthe court has determined that the defendant has demonstrated a\nsubstantial probability that the defendant was actually innocent of the\noffense of which he or she was convicted, or (2) in the case of a\ndefendant convicted after a trial, the court has determined that there\nexists a reasonable probability that the verdict would have been more\nfavorable to the defendant.\n (h) The judgment was obtained in violation of a right of the defendant\nunder the constitution of this state or of the United States; or\n (i) The judgment is a conviction where the defendant's participation\nin the offense was a result of having been a victim of sex trafficking\nunder section 230.34 of the penal law, sex trafficking of a child under\nsection 230.34-a of the penal law, labor trafficking under section\n135.35 of the penal law, aggravated labor trafficking under section\n135.37 of the penal law, compelling prostitution under section 230.33 of\nthe penal law, or trafficking in persons under the Trafficking Victims\nProtection Act (United States Code, title 22, chapter 78); provided that\n (i) official documentation of the defendant's status as a victim of\nsex trafficking, labor trafficking, aggravated labor trafficking,\ncompelling prostitution, or trafficking in persons at the time of the\noffense from a federal, state or local government agency shall create a\npresumption that the defendant's participation in the offense was a\nresult of having been a victim of sex trafficking, labor trafficking,\naggravated labor trafficking, compelling prostitution or trafficking in\npersons, but shall not be required for granting a motion under this\nparagraph;\n (ii) a motion under this paragraph, and all pertinent papers and\ndocuments, shall be confidential and may not be made available to any\nperson or public or private entity except where specifically authorized\nby the court; and\n (iii) when a motion is filed under this paragraph, the court may, upon\nthe consent of the petitioner and all of the state and local\nprosecutorial agencies that prosecuted each matter, consolidate into one\nproceeding a motion to vacate judgments imposed by distinct or multiple\ncriminal courts; or\n (j) The judgment is a conviction for a class A or unclassified\nmisdemeanor entered prior to the effective date of this paragraph and\nsatisfies the ground prescribed in paragraph (h) of this subdivision.\nThere shall be a rebuttable presumption that a conviction by plea to\nsuch an offense was not knowing, voluntary and intelligent, based on\nongoing collateral consequences, including potential or actual\nimmigration consequences, and there shall be a rebuttable presumption\nthat a conviction by verdict constitutes cruel and unusual punishment\nunder section five of article one of the state constitution based on\nsuch consequences; or\n (k) The judgment occurred prior to the effective date of the laws of\ntwo thousand twenty-one that amended this paragraph and is a conviction\nfor an offense as defined in subparagraphs (i), (ii), (iii) or (iv) of\nparagraph (k) of subdivision three of section 160.50 of this part, in\nwhich case the court shall presume that a conviction by plea for the\naforementioned offenses was not knowing, voluntary and intelligent if it\nhas severe or ongoing consequences, including but not limited to\npotential or actual immigration consequences, and shall presume that a\nconviction by verdict for the aforementioned offenses constitutes cruel\nand unusual punishment under section five of article one of the state\nconstitution, based on those consequences. The people may rebut these\npresumptions.\n 2. Notwithstanding the provisions of subdivision one, the court must\ndeny a motion to vacate a judgment when:\n (a) The ground or issue raised upon the motion was previously\ndetermined on the merits upon an appeal from the judgment, unless since\nthe time of such appellate determination there has been a retroactively\neffective change in the law controlling such issue; or\n (b) The judgment is, at the time of the motion, appealable or pending\non appeal, and sufficient facts appear on the record with respect to the\nground or issue raised upon the motion to permit adequate review thereof\nupon such an appeal unless the issue raised upon such motion is\nineffective assistance of counsel. This paragraph shall not apply to a\nmotion under paragraph (i) of subdivision one of this section; or\n (c) Although sufficient facts appear on the record of the proceedings\nunderlying the judgment to have permitted, upon appeal from such\njudgment, adequate review of the ground or issue raised upon the motion,\nno such appellate review or determination occurred owing to the\ndefendant's unjustifiable failure to take or perfect an appeal during\nthe prescribed period or to his or her unjustifiable failure to raise\nsuch ground or issue upon an appeal actually perfected by him or her\nunless the issue raised upon such motion is ineffective assistance of\ncounsel; or\n (d) The ground or issue raised relates solely to the validity of the\nsentence and not to the validity of the conviction.\n 3. Notwithstanding the provisions of subdivision one, the court may\ndeny a motion to vacate a judgment when:\n (a) Although facts in support of the ground or issue raised upon the\nmotion could with due diligence by the defendant have readily been made\nto appear on the record in a manner providing adequate basis for review\nof such ground or issue upon an appeal from the judgment, the defendant\nunjustifiably failed to adduce such matter prior to sentence and the\nground or issue in question was not subsequently determined upon appeal.\nThis paragraph does not apply to a motion based upon deprivation of the\nright to counsel at the trial or upon failure of the trial court to\nadvise the defendant of such right, or to a motion under paragraph (i)\nof subdivision one of this section; or\n (b) The ground or issue raised upon the motion was previously\ndetermined on the merits upon a prior motion or proceeding in a court of\nthis state, other than an appeal from the judgment, or upon a motion or\nproceeding in a federal court; unless since the time of such\ndetermination there has been a retroactively effective change in the law\ncontrolling such issue; or\n (c) Upon a previous motion made pursuant to this section, the\ndefendant was in a position adequately to raise the ground or issue\nunderlying the present motion but did not do so.\n Although the court may deny the motion under any of the circumstances\nspecified in this subdivision, in the interest of justice and for good\ncause shown it may in its discretion grant the motion if it is otherwise\nmeritorious and vacate the judgment.\n 4. If the court grants the motion, it must, except as provided in\nsubdivision five or six of this section, vacate the judgment, and must\ndismiss the accusatory instrument, or order a new trial, or take such\nother action as is appropriate in the circumstances.\n 5. Upon granting the motion upon the ground, as prescribed in\nparagraph (g) of subdivision one, that newly discovered evidence creates\na probability that had such evidence been received at the trial the\nverdict would have been more favorable to the defendant in that the\nconviction would have been for a lesser offense than the one contained\nin the verdict, the court may either:\n (a) Vacate the judgment and order a new trial; or\n (b) With the consent of the people, modify the judgment by reducing it\nto one of conviction for such lesser offense. In such case, the court\nmust re-sentence the defendant accordingly.\n 6. If the court grants a motion under paragraph (i) or paragraph (k)\nof subdivision one of this section, it must vacate the judgment and\ndismiss the accusatory instrument, and may take such additional action\nas is appropriate in the circumstances. In the case of a motion granted\nunder paragraph (i) of subdivision one of this section, the court must\nvacate the judgment on the merits because the defendant's participation\nin the offense was a result of having been a victim of trafficking.\n 7. Upon a new trial resulting from an order vacating a judgment\npursuant to this section, the indictment is deemed to contain all the\ncounts and to charge all the offenses which it contained and charged at\nthe time the previous trial was commenced, regardless of whether any\ncount was dismissed by the court in the course of such trial, except (a)\nthose upon or of which the defendant was acquitted or deemed to have\nbeen acquitted, and (b) those dismissed by the order vacating the\njudgment, and (c) those previously dismissed by an appellate court upon\nan appeal from the judgment, or by any court upon a previous\npost-judgment motion.\n 8. Upon an order which vacates a judgment based upon a plea of guilty\nto an accusatory instrument or a part thereof, but which does not\ndismiss the entire accusatory instrument, the criminal action is, in the\nabsence of an express direction to the contrary, restored to its\nprepleading status and the accusatory instrument is deemed to contain\nall the counts and to charge all the offenses which it contained and\ncharged at the time of the entry of the plea, except those subsequently\ndismissed under circumstances specified in paragraphs (b) and (c) of\nsubdivision six. Where the plea of guilty was entered and accepted,\npursuant to subdivision three of section 220.30, upon the condition that\nit constituted a complete disposition not only of the accusatory\ninstrument underlying the judgment vacated but also of one or more other\naccusatory instruments against the defendant then pending in the same\ncourt, the order of vacation completely restores such other accusatory\ninstruments; and such is the case even though such order dismisses the\nmain accusatory instrument underlying the judgment.\n 9. Upon granting of a motion pursuant to paragraph (j) of subdivision\none of this section, the court may either:\n (a) With the consent of the people, vacate the judgment or modify the\njudgment by reducing it to one of conviction for a lesser offense; or\n (b) Vacate the judgment and order a new trial wherein the defendant\nenters a plea to the same offense in order to permit the court to\nresentence the defendant in accordance with the amendatory provisions of\nsubdivision one-a of section 70.15 of the penal law.\n