Article 440 – for information on vacating a conviction due to immigration law consequences see page on Padilla v. Kentucky and the blog on Article 440 motions.
Note: please see Chaidez v. United States. The Chaidez case sets important limitations on the application of the rule in Padilla
If you or a friend or a family member has already been deported you may still be able to vacate the conviction. See People v. Ventura
Motions Pursuant To Article 440 Of The Criminal Procedure Law
What is an Article 440 Motion
The 440.20 Motion To Vacate A Sentence
Under the Criminal Procedure Law there exist post sentence/post judgment remedies and motions used to challenge the legality of a conviction or sentence. These post sentence motions are authorized under Criminal Procedure Law 440. They are made after conviction and judgment is entered.
A motion made under Article 440 is different than an appeal in many respects. The 440 motion is made to the trial court and not to an appellate court. The 440 motion informs the trial court of facts not contained in the trial record and can be used to expand the record as the basis for an appeal where certain facts are not contained in the record.
What are the reasons or circumstances under which an Article 440 motion can be made?
Under Section 440.10 you may challenge the conviction and move to vacate that conviction for the reasons listed in the statute. They are: 1) the trial court lacked jurisdiction; 2) the judge or prosecutor used fraud, false statements or undue pressure to secure your conviction; 3) the prosecutor introduced evidence at trial he/she knew to be false; 4) evidence obtained in violation of your U.S. or N.Y. State Constitutional rights was introduced at trial; 5) you could not understand or participate in trial because of a mental disability; 6) the record failed to include some improper conduct at trial such as the failure to produce exculpatory material; 7) new evidence has been found that would effect the result in your case that could not have been discovered before; 8. you were convicted in violation of your constitutional rights (including U.S. and N.Y. State Constitutional rights).
Under Section 440.20 you may challenge the legality of your sentence on the ground that it was unauthorized, illegally imposed or invalid as a matter of law.
Some important things to know about making article 440 motions
Under either Section 440.10 and 440.20 the trial court must or may deny the motion for a multitude of reasons. It is important to consult with an attorney to determine if you or your client had a viable argument under Criminal Procedure Law 440.
Important Note For Immigration Attorneys and Detainees (please see recent Blogs on this subject)
It is important to note that many times when a client is being subjected to deportation because of a prior criminal conviction, the 440 motion may provide relief from deportation when a conviction can be vacated. If you or your client are in this position please contact my office to discuss the possibility of pursuing the possibility of vacating a conviction under Criminal Procedure Law 440. Please see the recent page regarding Padilla v. Kentucky and Article 440 for more information on vacating a conviction under Criminal Procedure Law 440.