Q: What is a 440 motion? 

A: Many years ago, the New York Legislature created a way for defendants to vacate convictions that happened in the past. The procedure for doing so is found in New York Criminal Procedure Law (“CPL”) Section 440.10. This statute lists many reasons that a judgment of conviction may be vacated. The most important one is a catch-all provision which allows the Court to vacate a judgment of conviction when it was obtained in violation of the New York State or Federal constitutions.  CPL § 440.10(1)(h). Lawyers at Cohen, Forman and Barone specialize in 440 motions and have filed hundreds of them in the past.  

Q: How soon after your conviction do you have to file a 440 motion? 

A: In New York there is absolutely no time limit on when you can file a 440 motion. One can file it at any time.

Q: Can one file a 440 motion on a plea of guilty or just on a trial conviction? 

A: A person can file a 440 on any conviction, whether or not it was obtained after trial or by guilty plea. Section 440 motions based on newly discovered evidence or actual innocence, in most circumstances, may only be raised on trial convictions. But there may be times when our firm finds out about evidence of innocence that was withheld from the defense. Prior to a plea of guilty the defendant is entitled to exculpatory evidence and the plea of guilty may be vacated in such a situation.  

Q: Is there a risk in filing a 440 motion? Can a person harm themselves by moving to vacate a conviction? 

A: If a person is able to vacate a guilty-plea conviction, that client would lose the benefit of the plea bargain. The prosecution and defense would go back to where they were directly prior to the plea of guilty and the parties could move forward to trial, work out a new plea bargain, or seek dismissal of the case. If the defendant was convicted again, the sentence could hypothetically be more severe. In the case of a defendant who is worried about immigration consequences, often a new plea bargain that has no immigration consequences can be negotiated as part of the motion to vacate in New York. This can take away the risk of reopening the case. Also, if a case is very old, it is very likely that if the plea of guilty is vacated, the prosecution would not be able to prove the charges and they would be dismissed.  Generally, motions to vacate trial verdicts do not carry any risk of harm. 

Q: Can filing a 440 motion help an immigrant with immigration authorities? 

A: There are many non-citizens whose convictions are hurting them with their immigration status.  Convictions can cause a person to be put in deportation proceedings or the conviction can bar applications for legal permanent residence (i.e., getting a green card) or it can make it impossible to obtain U.S. citizenship. Winning a 440 motion can avoid the detriment that the conviction causes with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), or the United States Citizenship and Immigration Services. It is very important to have an attorney, like those at Cohen Forman and Barone, who understand that the granting of a 440 motion has to be done in a certain way to be effective with these immigration agencies. We are a full-service criminal and immigration firm. Many lawyers call this practice CRIMMIGRATION.    

Q: What does an immigration attorney mean when they say that a client needs post-conviction relief or “PCR” ?

A: Post-conviction relief is exactly what an immigrant would receive if they won a 440 motion to vacate their conviction. However, post-conviction relief (PCR) can also apply to appeals, motions to file a late notice of appeal, writs of habeas corpus, or coram nobis petitions. 

Q: Is there a special 440 motion for marijuana cases that are causing immigration consequences? 

A: Yes. Many marijuana crimes have been repealed and these convictions have been vacated and sealed. However, they still can have immigration consequences because immigration authorities do not honor what the New York courts are doing with those convictions. However, even though the convictions do not exist under New York law, an immigrant can file a motion to vacate the original conviction under CPL § 440.10(1)(k). 

Q: Is there a special motion for misdemeanor cases that are causing immigration consequences?

A: The New York Legislature recently passed a law called One Day for New York. In that law the maximum sentence for Class A misdemeanors was reduced by one day that is from one year to 364 days. This has an effect on the immigration consequences of these misdemeanors because some deportable offenses are affected by whether a sentence imposed was one year or whether, regardless of what sentence was actually imposed, a sentence could have been one year. This change in the law also helps immigrants who want to file for cancellation of removal for persons who are not legal permanent residents. Of course, this recent change in the law does not help immigrants who were convicted prior to the law’s effective date. But fortunately, non-citizens may move to vacate these misdemeanors under CPL § 440.10(1)(j), a new provision under New York Law. This section allows a defendant to move to vacate the old plea because it was not knowing and intelligent and then plead to the same charge under the new law. This in many cases would wipe out the immigration problem with the conviction.   

Q: How does the filing of a notice of appeal help an immigrant with their deportation case?

A: A non-citizen can only be deported for a conviction that is final. If a case is on appeal, it is not final. In New York State, a defendant must file a notice of appeal within 30 days of the sentencing. In general, a notice of appeal would let you attack your conviction in an appellate court, something all defendants might want to do. 

Q: Can a defendant file a notice of appeal after the 30 days have expired? 

A: Yes. Up to one year after the 30 days expired a defendant may file a motion with the appellate court to allow a late notice of appeal. However, there must be specific legal grounds for such a motion related to, for example, failures by your attorney, the court, or other state agencies. Often an investigation by Cohen, Forman and Barone will lead to the discovery of a meritorious issue to justify granting the motion for a late notice of appeal in New York. The one-year period is strictly enforced. However, in extremely rare cases, one can file a successful coram nobis petition in the appellate court to file a late notice of appeal. For such a petition, there must be an egregious error in how the filing of the notice of appeal was handled. There must be a strong justification for both the failure to file the motion during the one year period and for any other delay that occurred.   

Q: If someone files a 440 motion in New York, does that mean that the conviction is not final and cannot be used for deportation? 

A: No. A 440 motion does not make the conviction non-final. But if you win a 440 motion and vacate your judgement of conviction, you generally cannot be deported for that offense until a new conviction is entered. That does not mean you cannot be deported for some other reason, such as that you do not have status to be in the United States. 

Q: What is the difference between a 440 motion and an appeal? 

A: An appeal is based on the record in the case. A 440 motion can be based on on-the-record and off-the-record facts that the defendant adds to the record such as documents and affidavits. This may include evidence of what occurred in private conversations between a lawyer and the client, or the lawyer’s testimony as to whether a failure to do something was based on the lawyer’s strategy decision or was a mistake. If a claim could be raised on appeal and there was no justification for not raising it on appeal, then you cannot file a 440 to raise that same issue. However, if there is a strong justification for the failure to appeal, a 440 motion may be used to raise an appellate issue. If the claim is based on a combination of facts, some of which are on the record and some of which are off-the-record, a 440 motion is allowed. 

Q: What is the case of Padilla v. Kentucky about?  

A: In Padilla v. Kentucky, the Supreme Court created a duty for defense counsel, prior to a plea of guilty, to inform a defendant of the immigration consequences of a plea of guilty. If the insufficient or inaccurate immigration advice is given, the defendant also has to prove that this fact would have changed the result of the case – which means that a defendant would have turned down the guilty plea and either gone to trial or obtained an alternative plea of guilty that did not have such horrible immigration consequences. Cohen, Forman, and Barone specialize in filing motions based on Padilla v. Kentucky in New York courts. 

Q: What is the case of People v. Peque about? 

A: In People v. Peque, the New York State Court of Appeals ruled that when a defendant is pleading guilty, the Court has to advise a defendant of the risk of deportation as a result of the conviction. Again, as with Padilla, a defendant must show that had the risk been properly explained, it would have changed the defendant’s decision to plead guilty. A Peque claim should be raised on direct appeal and then the appellate court will remand the case to the plea court to determine if advisal of the risk would have changed the result of the case.  

Q: What is a coram nobis?

A: Coram nobis petition involves several different situations. As a bit of history, prior to the enactment of Section 440, a defendant could raise 440 issues by filing a coram nobis with the lower court. It has generally involved a claim that a lawyer at some point in the case acted in an incompetent fashion. If a prior appeal was mistakenly argued by the attorney, a defendant may file a coram nobis petition to ask the appellate court to reconsider its ruling. As noted above, in very rare cases, where there was an egregious error in how the filing of the notice of appeal was handled, a defendant may file a late notice of appeal by coram nobis outside of the one-year time period. And, finally, in federal court, a defendant may file a motion to vacate the conviction by a writ of error coram nobis to raise constitutional issues after the time periods for other post-conviction motions have expired. 

Here is the exact language of CPL § 440.10(1) which lists the grounds for filing a 440 motion. 

This was taken from the New York Senate website.

(a) The court did not have jurisdiction of the action or of the person of the defendant; or (b) 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 (c) 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 (d) 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 (e) 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 (f) 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 (g) 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 (g-1) Forensic DNA testing of evidence performed since the entry of a judgment, (1) in the case of a defendant convicted after a guilty plea, the court has determined that the defendant has demonstrated a substantial probability that the defendant was actually innocent of the offense of which he or she was convicted, or (2) in the case of a defendant convicted after a trial, the court has determined that there exists a reasonable probability that the verdict would have been more favorable to the defendant. (h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States; or (i) The judgment is a conviction where the defendant's participation in the offense was a result of having been a victim of sex trafficking under section 230.34 of the penal law, sex trafficking of a child under section 230.34-a of the penal law, labor trafficking under section 135.35 of the penal law, aggravated labor trafficking under section 135.37 of the penal law, compelling prostitution under section 230.33 of the penal law, or trafficking in persons under the Trafficking Victims Protection Act (United States Code, title 22, chapter 78); provided that (i) official documentation of the defendant's status as a victim of sex trafficking, labor trafficking, aggravated labor trafficking, compelling prostitution, or trafficking in persons at the time of the offense from a federal, state or local government agency shall create a presumption that the defendant's participation in the offense was a result of having been a victim of sex trafficking, labor trafficking, aggravated labor trafficking, compelling prostitution or trafficking in persons, but shall not be required for granting a motion under this paragraph; (ii) a motion under this paragraph, and all pertinent papers and documents, shall be confidential and may not be made available to any person or public or private entity except where specifically authorized by the court; and (iii) when a motion is filed under this paragraph, the court may, upon the consent of the petitioner and all of the state and local prosecutorial agencies that prosecuted each matter, consolidate into one proceeding a motion to vacate judgments imposed by distinct or multiple criminal courts; or (j) The judgment is a conviction for a class A or unclassified misdemeanor entered prior to the effective date of this paragraph and satisfies the ground prescribed in paragraph (h) of this subdivision. There shall be a rebuttable presumption that a conviction by plea to such an offense was not knowing, voluntary and intelligent, based on ongoing collateral consequences, including potential or actual immigration consequences, and there shall be a rebuttable presumption that a conviction by verdict constitutes cruel and unusual punishment under section five of article one of the state constitution based on such consequences; or (k) The judgment occurred prior to the effective date of the laws of two thousand twenty-one that amended this paragraph and is a conviction for an offense as defined in subparagraphs (i), (ii), (iii) or (iv) of paragraph (k) of subdivision three of section 160.50 of this part, in which case the court shall presume that a conviction by plea for the aforementioned offenses was not knowing, voluntary and intelligent if it has severe or ongoing consequences, including but not limited to potential or actual immigration consequences, and shall presume that a conviction by verdict for the aforementioned offenses constitutes cruel and unusual punishment under section five of article one of the state constitution, based on those consequences. The people may rebut these presumptions.