440 Motions

A post-conviction motion to set aside a verdict, often referred to as a 440 motion in New York, is a collateral attack on a judgment of conviction. Essentially, a 440 motion is a legal procedure and mechanism to unwind a criminal conviction under certain circumstances. Unlike a direct appeal, the basis for a 440 motion is not limited to the official record of what transpired in court that led up to conviction, and it is not limited to looking only at legal errors. Instead, a 440 motion can raise issues of fact, such as newly discovered evidence, and can also look beyond the record to things that happened outside of the courtroom, such as juror misconduct or conversations between attorneys. If a 440 motion is granted, the court will vacate the conviction and either dismiss charges, grant a new trial, or institute some other appropriate relief.

The basis of a motion to set aside a verdict under Criminal Procedure Law § 440.10 can be made on a number of different bases, such as the trial court’s lack of jurisdiction over the case or the defendant, fraud or misrepresentations on the part of the court or a prosecutor, evidence presented by the prosecutor that was knowingly false, Constitutional violations including ineffective assistance of counsel, mental incompetency of the defendant at the time of the trial or guilty plea, other prejudicial conduct by parties involved, newly discovered evidence, DNA testing, and more.

Perhaps the most common issue raise in a 440 motion is ineffective assistance of counsel. While sometimes difficult to establish, this can amount to a violation of a defendant’s Constitutional right to counsel. To prevail on this basis, a defendant must establish objectively unreasonable actions or failures to act by the attorney, and that these actions or inaction prejudiced the defendant. Some of the most common examples of actions or inaction by an attorney that can lead to a successful 440 motion are a failure to investigate adequately, a failure to thoroughly review the evidence against the defendant, failure to look into prosecution witnesses, failure to identify and interview witnesses for the defendant, failure to investigate an alibi defense, a conflict of interest such as a close relationship with a prosecutor, judge, witness or co-defendant, failure to move to dismiss on speedy trial grounds, failing to move to suppress evidence, incorrect legal advice, failing to make objections at trial or making improper objections, failing to negotiate for a plea bargain or to inform the defendant of a plea offer, or failing to adequately consult with the client and review discovery with the defendant.

Some of these mistakes would be apparent from review the record of the trial or other proceedings, such as failing to file certain motions or making improper objections at trial. These kinds of issues could be raise in a direct appeal. However, many of these issues, such as failing to review discovery or convey a plea bargain, will not be evident from the record, since they took place (or would have taken place) outside of court. These kinds of issues could not be raised in a traditional direct appeal, and this is one of the ways in which a 440 motion is so essential. In a 440 motion, the court can look to things that occurred, or did not occur, outside of the record. These kinds of arguments and assertions can be supported by affidavits from the the defendant or other relevant witnesses, including attorneys, as well as testimony from witnesses and other evidence presented at a 440 hearing.

Unlike a direct appeal, which is brought before a higher court than the trial court, a 440 motion is brought before the same court where the conviction took place – the trial court. This can seem problematic or concerning to a defendant, since the trial court would seem to have an inherent bias toward upholding its own judgments. This could be a real concern in certain circumstances, but where ineffective assistance of counsel or new evidence is concerned, for example, a trial court has little to no reason to uphold the prior judgment for its own sake where the subject of the 440 motion is evidence or issues that were not known to the court at the time of the conviction. In addition, if the trial court does deny the 440 motion, that denial can itself be appealed to a higher court and reviewed by a panel of appellate judges.

With respect to newly discovered evidence, there is one significant caveat or limitation to this basis for a 440 motion. The new evidence must be evidence that the defendant or the defense attorney could not have discovered with due diligence at the time of the trial or guilty plea. In other words, the evidence must be truly “new,” not some evidence that existed at the time and was simply overlooked or underappreciated at the time. There is significant interplay between this limitation and ineffective assistance of counsel, since a blatant oversight of some evidence by the trial attorney, or a lack of adequate investigation, could end up precluding a 440 motion on this ground, although an ineffective assistance of counsel basis would clearly remain.

There is no deadline by which a 440 must be filed, and a defendant can file any number of 440 motions so long as the issues raise in each motion have not been raised in a previous 440 motion or on direct appeal. The motion can be filed at any time after final judgment, which is of critical importance when it comes to things like newly discovered evidence, which could be uncovered many years or even decades after the fact. However, one factor the court might consider in assessing a 440 motion is the prejudice that the prosecution might face in going through with a new trial given the passage of time.

This lack of time limitation, and limit on re-raising the same issue in subsequent 440 motions means that thorough investigation and preparation are critical in an effective 440 motion, since this motion may be the one and only chance to vacate the conviction and clear your name. It is therefore crucial to have an knowledgeable and creative criminal defense attorney who has experience in both appellate practice and trial work.