Motion 440.10 to Vacate Criminal Judgment.
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.
If the court grants the motion, it must 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.
Upon granting the motion upon the ground, 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:
- (1) Vacate the judgment and order a new trial; or
- (2) 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.
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 Criminal Procedure Law Section 440.10.
Get more information here: