Motion to vacate default judgment. 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 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.
Moreover, not every issue can be raised by a § 440 motion. 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.
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