Motion to Vacate a Criminal Judgment. Reopen your criminal case in New York

Motion to Vacate a Criminal Judgment. Reopen your criminal case in New York

A motion for vacating a criminal conviction in New York can be filed, pursuant to the New York Criminal Procedure Law (N.Y.C.P.) § 440.10, at any time after the entry of a judgment, with the court in which it was entered. Section 440.10 (1)(b) of the N.Y.C.P is a partial codification of the writ of error coram nobis, an ancient English common law doctrine that the New York Court of Appeals rejuvenated in 1943 in Matter of Lyons v. Goldstein (a defendant who pleaded guilty to burglary in the third degree). Article 440.10 motion allows the court to grant post-conviction motions to vacate a judgment when the issue raised upon such motion is ineffective assistance of counsel in certain cases in which the court would, on the other hand, be required to deny the motion. The 440 motion is the New York State vehicle for collaterally attacking a criminal conviction. The basics of a 440 motion ny are set forth in the statute itself. In 1970, section 440.10 of the N.Y.C.P. was enacted in a renew of the state’s then-Code of Criminal Procedure, which dated back to 1881. The reform simplified motion practice through an omnibus motion technique, to replace a system in which many grounds or contentions must be separately raised by dfferent types of motions.

A vacate order or an order to vacate is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. A vacated order or vacated judgment makes a previous legal judgment legally void. An appellate court may also vacate its own decisions.

A trial court may have the power under certain circumstances, usually involving fraud or lack of jurisdiction over the parties to a case, to vacate its own judgments. A vacated judgment may free the parties to civil litigation to re-litigate the issues subject to the vacated judgment.

The “vacate” meaning refers to a formal proposal to reverse (vacate) the decision in a matter which had previously been formally ruled upon. 

A judgment is the court’s final decision in the case. A default judgment is an order issued by a judge that essentially asserts that the judge found no question of law and that the unequivocal facts of the case were sufficient to draw a conclusion. A default judgement is issued by the Court against a defendant who fails to file a written answer with the court (defaults), in the time set by law (usually 30 days). A default judgment is usually obtained by the plaintiff when the defendant does not appear at a hearing or does not file an answer to the summons and complaint. The plaintiff can request the default be entered into the court record by the clerk, which gives the plaintiff the right to get a default judgment.The court usually awards the plaintiff the amount demanded in the complaint, plus interest and court costs. If proof of damages or other relief are necessary, a hearing will be held in which the judge determines terms of the default judgment. The defendant must show a legitimate excuse and a good defense to the lawsuit.

When you receives a default judgment, under certain circumstances, it is possible tovacate (re-open) it. 

A judgment may be vacated only in limited case, when the defendant can prove, alternatively, that:

1. The court did not have jurisdiction of the action or of the person of the defendant; or

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

Under certain circumstances you may be able to file a Motion to Vacate Default Judgment. The motion allows you to inform the trial court of facts that cannot be raised on appeal because they were not in the trial record, since facts presented for the first time on appeal cannot be considered by an appellate court. The court has a special procedure for determining whether to vacate a default judgment. In order to vacate a default judgment you have to find out which court issued the judgment and the civil court clerk’s office. The clerk may give you a pre-printed document request form to fill out. Once you have drafted the forms to your specifications you can file them with the court. 

Typically, the clerk will assign a motion to vacate hearing date. A motion to vacate neither is not simply a second chance nor it is an appeal. Individuals who believe they should not be subject to orders or judgments by the Court because they were not granted fair opportunities to prevent the outcome, may file a motion to vacate, which is a request for a court to withdraw a judgment or order that it issued.

The motion can be filed at any time after the entry of a judgment, with the court in which it was entered. A motion under § 440.10 to vacate a criminal judgment can be filed while still incarcerated or even after serving the convictions. In fact, in some cases the collateral consequences (such as deportation from the U.S. of non-citizens) of a criminal conviction are far worse than the penalty imposed by the criminal court. A motion under § 440.10 is not an appeal and is not a substitute for it.

On the other hand, a 28 usc 2255 motion (Motion Under 28 U.S.Code § 2255, Motion to Vacate/ Set Aside Sentence) allows an incarcerated defendant who was convicted of a federal crime to challenge the injustice of the sentence as well as the conviction upon which the sentence is based. It is also known as writ of habeas corpus, Post-Conviction Relief (PCR) or Collateral Attack. A defendant may make a collateral attack on a judgment entered against him/her in some instances. If a default judgement is entered against the person, he/she may collaterally attack the authority of the issuing court to render it, claiming that there was a lack of Personal Jurisdiction. “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence”.

A 1-year period of limitation shall apply to a 28 usc 2255 motion. The limitation period shall run from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Moreover, not every issue can be raised by a § 440 motion. A motion to vacate the chair is an extraordinarily used motion available to members of the U.S. House who are disappointed with their leadership. If a majority agree with the motion, the speaker in charge is deprived of his/her office and a new election must be held.

A motion to vacate dismissal is a motion used when a court dismisses a case, in order to revive. A motion to vacate dismissal order is generally filed by a debtor or debtor’s counsel (or by any other party in interest), to request that the court vacate the dismissal order and reinstate the case. The debtor may explain reasons for not following court rules or moving the case along. 

Upon granting the motion upon the ground, that newly discovered evidence creates a probability that if such evidence would have been received at the trial the verdict would have been more favorable to the defendant. In that case, 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.

In order to vacate a judgment, the defendant can prove, alternatively, that:

1. The court did not have jurisdiction of the action or of the person of the defendant; or 

2. 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 

3. 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 

4. 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 

5. 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 

6. 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 

7. 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 

8. The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

If you are accused and you did not go to your trial, the court may enter a judgment against you based on the information the plaintiff provided, without knowing your declaration. A motion to vacate default judgment is filed when you want a new trial, in order to ask the judge to vacate (cancel) the judgment against you. You must have a good reason for not going to your trial. A motion to vacate order is a request to the court to withdraw a previous order or judgment it entered. It has to be based on one of the specific reasons set forth in Civil Rule 60. The sample motion to vacate a default judgment under Federal Rule of Civil Procedure 60(b)(1) is used in United States District Court on the grounds of mistake, inadvertance, surprise or excusable neglect. The sample can be used in any State that is in the Ninth Circuit Court of Appeals, has a memorandum of points and authorities with citations to case law and statutory authority, brief instructions, a sample declaration, and proof of service by mail.

You may file a Motion to Vacate in Superior Court or in a court of limited jurisdiction such as district court

A motion for default judgment is not simply a second chance and it should not be confused with an appeal. If you vacate judgement, you basically return to the source of the judgment and claims that you did not have a fair opportunity to present your case and, therefore, request the court to deem its decision void (not valid).

A motion must be made in writing. A motion must have all of these forms:

1. A Notice of Motion, which lets the court know that you are filing a motion;

2. A Certification, a statement in which you tell the court all of the facts that the court needs to have in order to settle a decisión;

3. A Memorandum of Law, which makes legal arguments that apply to the motion;

4. Certification of Service, a statement to send the plaintiff a copy of the motion;

5. Order, a blank form for the judge to fill out with the decision on themotion.

Defendants in New York State have 30 days to file a notice of appeal from the date of sentence. A notice of appeal is a one-page document simply stating that one is appealing the judgment. If no notice of appeal is filed within 30 days, a defendant may file a motion to file a late notice of appeal within one year of the 30-day limit’s expiration.

A motion to vacate judgment challenges the fairness and/or the legality of your conviction.

It allows you to attack your conviction by stating that the trial court acted improperly when it found you guilty.

The statute also provides that the court may deny the motion if:

1. facts could “with due diligence” have been made part of the record to allow for review on appeal;

2. the same issue was decided in a prior motion or proceeding (other than an appeal); or

3. the defendant unjustifiably failed to raise the issue on a prior motion under N.Y.C.P. § 440.10.

Upon a new trial resulting from an order vacating a judgment, 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.

The most feasible reason that a court would grant a motion to vacate default is because you did not have notice of the lawsuit or a particular hearing that was part of the lawsuit. Sometimes a lawsuit is not served on a party.

When the judge grants the motion, the court allows you to file an answer (in Circuit Court) or a notice of intention to defend (in District Court).

This is the way the judgment against you is removed and the lawsuit continues. The granting of the motion does not make the case go away. The District Court may also reset your case for a trial and send you notice of the new date. If you fail to participate and the default judgment is entered against you for a second time, the court likely will not look favorably upon a second request to vacate default judgment.

If the motion to vacate is NOT granted, you may still have an opportunity to contest the damages awarded to the other side. If the judge will deny the motion, you will have 10 days from the date the denial was mailed to you to file a Notice of Appeal. 

The barriers to overcoming a summary judgment are considerably higher than a standard judgment. Most court only vacate a summary judgment in the case of an evidence or demonstration of a material omission.

Some defendants are convicted after an unfair trial. If you pleaded guilty, vacating the conviction reopens your case. This means that the State can recharge you and If you are trying to overturn a conviction based on a trial, the sentence cannot be increased the second time around unless there is some new circumstance that warrants the increase in sentence, such as new misconduct by the defendant.

If you want to reopen your criminal case in New York, you need to hire an Appellate Attorney to file a Motion 440.10 on your behalf. Some defendants are convicted because their lawyers failed to present evidence of their innocence or made other costly mistakes during their trial. 

The process can be very complicated for an individual who has no knowledge of the procedure.

Immigration federal court litigation is drastically different from immigration court appeals (enlace), proceedings before the USCIS, or practice before the Board of Immigration Appeals (BIA).  

Immigration appeals court The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice, responsible for adjudicating immigration cases. If the immigration judge in the EOIR denies your case, you may have the right to an appeal. The Board of Immigration Appeals (BIA) is an administrative appellate body within the Executive Office for Immigration Review of the United States Department of Justice. The BIA is located in Falls Church, Virginia, and, as of April 2009, had 14 board members, who are administrative judges appointed by the U.S. Attorney General. 

Under certain circumstances, an immigration case can be heard by the U.S. District Court and the U.S. Circuit Court of Appeals. If you disagree with a BIA ruling, you may file a writ of mandamus in the U.S. District Court to force the immigration authorities to render a decision in your case. A writ of habeas corpus may also be filed in the U.S. District Court to review the legality of an individual’s arrest, imprisonment, or detention. Because only an alien may appeal an adverse BIA decision, the federal courts never see cases in which an alien has been granted relief. The U.S. government also has a right to appeal your case, even if the judge granted it. You may find yourself arguing your case to the BIA. The appeal is done in writing, with no hearings except in rare cases. It is for the BIA to review the faultlessness of the decision made by the EOIR, based on the existing court transcripts and records. The appeal must be filed within 30 days of the Judge’s decision.  

Because the decision by the BIA is the final decision of the agency an appeal to the BIA is often the last opportunity to achieve a positive decision from the court. If the alien loses again before the BIA, the only remaining recourse is to file a petition for review in the federal Court of Appeals in the circuit in which the case was originally tried. Petitions for review of BIA decisions must be filed within 30 days of the issuance of the BIA decision. If there is an previous deadline that may affect deportability, the petition should be filed prior to that time. In cases in which an appeal to the federal courts is permitted, the petition for review must be filed in the Court of Appeals which has jurisdiction over the case (the circuit where the immigration judge completed the case). The petition must be filed in the Court of Appeals within 30 days of the removal order becoming final, and must be accompanied by the appropriate filing fee. A motion for stay of deportation or removal should also be filed with the appeals court. Unlike with BIA appeals, there is no automatic stay when a federal appeal is filed, so it is imperative for counsel to seek a stay of removal while the appeal is pending. Once the Court of Appeals has jurisdiction, it will establish a briefing schedule. These limits can only be altered if the court, for good cause shown, orders differently. If an alien fails to file a brief within the time required, the Court must dismiss the appeal unless a manifest injustice would result. If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the U.S. Supreme Court. 

Immigration appeals online You may find online the the form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of an Immigration Officerto) in order to appeal an U.S. Citizenship and Immigration Services (USCIS) decision on a Form I-130 or Form I-360. 

The Notice of Appeal asks for specific details about the underlying application you filed with DHS. An attorney or an accredited representative of an organization recognized by the BIA must file a separate notice of appearance on behalf of the petitioner (Form EOIR-27) with the EOIR-29. You must file the Notice of Appeal with the Department of Homeland Security (DHS), USCIS. If the decision was handed to you by a USCIS Officer, you must file this Notice of Appeal within 30 calendar days. If the decision was mailed to you by USCIS, the Notice of Appeal must be received within 30 calendar days from the date the decision was mailed to you. Do not send the Notice of Appeal directly to the BIA. Only the petitioner, or a self-petitioner, is allowed to sign Form EOIR-29.

The BIA may summarily dismiss any appeal or portion of any appeal in which: 

1. The appellant fails to specify the reasons for the appeal; 

2. The only reason specified by the appellant for his/her appeal involves a finding of fact or conclusion of law which was conceded by him/her at a prior proceeding; 

3. The appeal is from an order that granted the appellant the relief that had been requested; 

4. The appeal is filed for an improper purpose, such as to cause unnecessary delay, or lacks an arguable basis in fact or law, unless the Board determines that it is supported by a good faith argument for extension, modification, or reversal of existing law; 

5. The appellant indicates on Form EOIR-29 that he/she will file a separate brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his/her failure to do so, within the time set for filing; 

6. The appeal does not fall within the BIA’s jurisdiction; 

7. The appeal is untimely or barred by an affirmative waiver of the right to appeal that is clear on the record; or 

8. The appeal fails to meet essential statutory or regulatory requirements or is expressly excluded by statute or regulation.

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There are four thousand adjudicators that decide on green cards and visa, and a third of them do not have access to any criminal or terrorist records.

The battle lines are drawn in Arizona, and Arizonans have been successful in getting this issue in front of the American Public.

Prop 200 was an important, uphill battle against the political establishment, as is the Minutemen.

The fence in San Diego is applauded by people on both sides of the border, because of the drug activity and the smuggling caused both sides of the border to be lawless areas which also destroyed the land.

The fence went up and now property values are skyrocketing, but putting up the fence is only part of the answer.

Before talking about a guest worker program we need border protection and interior enforcement.

There are four thousand adjudicators that decide on green cards and visa, and a third of them do not have access to any criminal or terrorist records.

They process six million applications per year, and they’re in a complete meltdown. We don’t have time to wait and get this under control, which makes the Minutemen so important as well as the state and local governments.

The government of Mexico is aiding and abetting those who violate our laws, and they send back up to $20 billion.

Mexico should privatize its economy and address the corruption. There have even been military incursions from Mexico into the US.

The cult of multiculturalism is responsible for trying to destroy our unique identity and our rule of law. Our population is growing but it’s not because of the birth rate it’s because of immigration.

It’s caused by the economic problems in those countries, and there are also environmental reasons to be concerned about illegal immigration.

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How to apply for american citizenship?

On the jus soli based American Citizenship, also known as birthright citizenship.

Under the 14º Amendment of the U.S.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”, Constitution.

As a result, many women are coming to the USA by “citizenship tourism”. On this way, they are giving birth on American soil so that their child acquire automatically American Citizenship.

Those born abroad from one or both U.S. Citizen parents also acquire American Citizenship.

U.S. Consulates abroad issue a consular Report of Birth Abroad.

Besides birth in the USA, Citizenship should be acquired by the naturalization process.

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What is the processing time for Form I-130?

If you are filing or about to file Form I-130 and you are a citizen or permanent resident of the United States, you may help a foreign family member obtain a Green Card.

The purpose of this form is to establish your relationship to the relative you want to sponsor.

To do so, you will need to prove that a family law relationship exists between the petitioner and the beneficiary.

Also, the petitioner will have to prove to have enough income or assets to support your relative when they come to the United States.

In case of a spouse, the I-130 petition will have to be filed with strong evidence of good faith marriage, due to recent enforcement of the laws against marriage fraud.

Those engaging in marriage fraud face up to 5 years in jail and fines up to $250,000.

The immigration consequences of criminal convictions for marriage fraud are also very harsh.

Get more information here: http://ift.tt/1TKXSu6

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The deterioration of the border is a cause for reform from not only the federal but state and local government as well.

The deterioration of the border is a cause for reform from not only the federal but state and local government as well.

Crime is at the core of our concern, and Arizona is disproportionately affected.

The connection between illegal immigration and crime is clear and unavoidable.

We’ve passed a human smuggling law, because if we can target people who are at the center of criminal activity is has a multiplier effect on the overall crime rate.

Illegal immigrants are not victims, if they come here illegally they are breaking our laws and we need to recognize that. Many illegal immigrants are not held responsible in our courts for their crimes because they post bail and slip back across the border or even get deported by immigration officials.

Arizona will have a measure on the ballot next year to end the right of illegal immigrants accused of serious felonies to get out on bail. An alleged triple murderer recently escaped to Mexico, and we could not seek the death penalty or a sentence of life without parole in order to have him extradited.

This is extortion on the part of the Mexican government. Arizona has the highest crime rate in the nation, and it’s connected to identity theft and illegal immigration.

Law-breaking is endorsed by the Valley’s leading Spanish newspaper because they advocate using false documents. Each prosecution for identity theft costs $11,000, which hurts our economy.

Identity theft should not be part of the American dream. Non-citizens have been prosecuted here for violating the sanctity of the ballot by registering to vote, and also later claiming not to be citizens when called for jury duty.

We have a sense of human rights, and should not tolerate the excuses for having a sub class of people who are denied those rights.

There are good faith disagreements on these issues, so name-calling is misplaced. What ties us together is our citizenship, and it is appropriate for us to decide how we constitute our republic and deal with threats to our citizenship and public safety.

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What is the current green card processing time?

What is the current green card processing time?

There are family-based and employment-based green card processes, and within the employment-based division, there are numerous ways to proceed, depending on the nature of the employment. The University of Illinois handles three types of employment-based green cards as described below.

The type of green card process used puts the employee into a particular preference category which, when combined with the individual’s country of birth, determines his/her placement within the Immigration quota.

Get more information here: http://ift.tt/1WIyQJz

http://ift.tt/1X6I8it

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Canada has long had a very liberal immigration policy.

There won’t be any increases in civilian enforcement personnel in the immediate future.

The full time backup operations should be restored, like transportation checks in the airline, bus and train terminals and on the highways. Most illegal immigrants are not from Mexico and they are being arrested but released the same day.

We were promised the last amnesty was a one-time event, and we’ve had seven more amnesties since then. Last time they planned on 1.2 to two million applicants, but got 3.2 million applications. Last time we had counterfeit document vendors selling fakes within sight of immigration offices.

We need rigid enforcement of the employer sanctions laws, and we need a counterfeit-resistant and electronically verifiable Social Security card.

We should also do a better job standing up to Mexico and President Fox when he makes his demands. Combining the many different jobs and divergent missions into one agency, Homeland Security, was a huge mistake.

There’s nothing wrong with eliminating the anchor baby, or citizenship for the children of illegal aliens born here.

Canada has long had a very liberal immigration policy.

The Minutemen are nothing more than responsible citizens calling attention to the irresponsible failure of the federal government, they are heroes.

The rank and file border patrol say the Minutemen behave very well and did their job, at their assigned locations and didn’t stir up trouble.

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