20-b-1 What Is an Article 440 Motion?
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20-B-1. What is an Article 440 Motion?
An Article 440 motion challenges the legality of your conviction or sentence.3 If your Article 440 motion succeeds, you will receive a new trial or a new sentence. An Article 440 motion is not an "appeal" 4 and is not a substitute for an appeal or second appeal.5 In an appeal, you request a higher court (i.e., the "appellate division" or a "court of appeals") to review errors of the trial court. In an appeal, you may only raise issues that were part of the trial record. The following list describes information included within your trial record. This information is usually part of a traditional appeal. The following information is not usually included in an Article 440 motion:
(1) The "complaint" and the "indictment,"
(2) The "minutes" of any "hearing to suppress evidence" (a hearing to exclude evidence resulting from an illegal search or seizure) and other hearings, and
(3) The report of the formal proceedings in the trial court. This includes:
(a) the pleadings and motions made by both sides,
(b) the minutes of a guilty plea if you made one,
(c) the minutes of the trial court, including objections made by both sides and court rulings,
(d) the charges to the jury, if it was a jury trial,
(e) the minutes of the arraignment and the sentencing,
(f) the minutes of any adjournment, and
(g) any trial testimony and evidence such as documents, photographs, reports, etc.
An Article 440 motion allows you to inform the trial court of facts that were not in the trial record. You would not be able to raise these facts on appeal 6 because appellate courts cannot consider facts not in the trial record.7 There are two types of Article 440 motions: a "motion to vacate judgment" and a "motion to set aside sentence."
The first kind of motion, a motion to vacate a judgment, can be found in Section 440.10 of the New York Criminal Procedure Law. This motion challenges the fairness and/or legality of your conviction. This motion attacks your conviction by stating that the trial court acted improperly when it found you guilty. If this motion is granted, you receive a new trial or appeal.
The second kind of motion, a motion to set aside your sentence, is based on Section 440.20 of the New York Criminal Procedure Law. This motion attacks...
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