We’ve all watched courtroom dramas with riveting trial scenes. The most memorable are those in which the defendant is found guilty of a crime he did not commit. We sympathize with his feelings of shock and dread as he contemplates a lengthy prison sentence.

It’s a grim situation that occurs in real life. Even if the newly-convicted person has to start serving time right away, there’s still a chance to challenge this outcome. In New York, it’s called an Article 440 motion.

Is it the same as an appeal?

Unlike an appeal, appellate courts do not hear 440 motions. They are made before the trial court and challenge the legality of a criminal conviction based on evidence that is not on the record. There are two sections under Article 440 that allow you to submit a motion to reverse your conviction.

Section 440.10

You can challenge your conviction under Section 440.10 if any of the following circumstances apply:

• The court did not have authority over you or your alleged crime
• Your conviction was the result of judicial or prosecutorial fraud, misrepresentation, or duress
• The evidence that secured your conviction was inaccurate, and the court or prosecutor was aware of the fact
• The prosecution introduced evidence procured in a way that violated your constitutional rights
• You could not understand or participate in your defense due to mental disability
• Inappropriate statements or actions did not make it into the trial record
• Newly discovered evidence would affect the conviction. This evidence must not have been available to you during the original trial.
• Forensic DNA testing performed after your conviction creates a reasonable doubt of your guilt
• The conviction violated one of your constitutional rights
• You were convicted of prostitution when in reality you were a victim of sex trafficking

Section 440.20

You can only challenge your conviction under section Section 440.20 if you believe that it was imposed illegally, unauthorized, or had no legal basis. Mounting this type of challenge requires a certain level of expertise with New York State law, so input from an experienced New York criminal defense attorney is essential.

Section 440 and Immigration

If you are facing deportation due to a prior criminal conviction, filing a 440 motion can stop the proceedings if your conviction is set aside. In Padilla v. Kentucky, the U.S. Supreme Court ruled that criminal defense attorneys must advise clients who are not U.S. citizens that pleading guilty carries a deportation risk. The Sixth Amendment guarantees effective legal counsel to all criminal defendants, and if you were convicted after your attorney failed to advise you of the immigration consequences, you might be able to get your conviction overturned.

If a judge grants your 440 motion, the usual outcome is to set the judgment aside and then dismiss the case or order another trial. On the other hand, your motion may be denied if the court makes one of the following conclusions:

• The facts introduced could have been discovered before with proper due diligence
• The matter raised was settled in an earlier proceeding or motion
• You did not bring the matter to the court’s attention in a previous motion and had no viable reason for failure to do so

While a 440 motion can vacate the judgment against you, filing one requires professional knowledge of New York criminal law. Julie Rendelman is a New York City criminal defense attorney. She has over 20 years of legal experience and offers free consultations. If you are considering appealing a decision or seeking remedy via a 440 motion, then contact Ms. Rendelman’s office at 212-951-1232. She will explain your options and work with you to try and obtain the best result.