20-b-2 What You Can Complain About in an Article 440 Motion

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

20-B-2. What You Can Complain About in an Article 440 Motion

(a) Motion to Vacate Judgment

Article 440.10 lists eight wrongs that you may complain about in a motion to vacate judgment.¹³

These eight wrongs are as follows.

(1) The trial court lacked "jurisdiction" to decide your case.¹⁴

(2) The judge or prosecutor (or a person representing one of them) used fraud, "misrepresentation" (false statements), or "duress" (physical or undue psychological pressure) to secure your conviction.¹⁵ However, you cannot simply claim that the judge or district attorney used fraud or misrepresentation. ¹⁶ You must support your Article 440 motion with specific facts in the form of an "affidavit" and, if possible, witnesses. ¹⁷

(3) At trial, the prosecutor introduced (or the judge allowed in) "material evidence" (key evidence that significantly impacted the trial) which the prosecutor or judge knew was false at the time of trial. ¹⁸ Again, you cannot just state that the judge or district attorney knew certain facts were false, you must show that they knew the facts to be false.¹⁹

(4) The prosecutor introduced material evidence that was obtained in violation of your rights under the U.S. or New York State Constitutions.²⁰

(5) You could not understand or participate in the trial because you suffered from a mental disability of some kind. ²¹ For instance, in one case, a prisoner claimed in his Article 440 motion that he did not remember or understand his plea or the sentencing proceedings. In support of his motion, the prisoner noted that after the judgment he had been diagnosed with psychosis associated with brain trauma. In light of this fact, the court held that there should be a hearing on the prisoner's motion to vacate the conviction for manslaughter. ²²

(6) The record of your case failed to include "prejudicial" (improper and biased) conduct that occurred at your trial, and an appellate court would reverse the judgment against you if the conduct was in the record. ²³ Such conduct includes the prosecutor's failure to supply you with "Brady material." Brady material is any evidence that the prosecutor has or that the prosecutor knows that is favorable to the defense and material to guilt or punishment. ²⁴ This material is often referred to as "exculpatory evidence" (that is, evidence favorable to the defendant). To have a conviction overturned based upon the failure to produce Brady material, there must be a "reasonable probability" that the evidence would have affected the ultimate outcome of the trial. ²⁵ However, if your trial was in a New York state court and your defense counsel made a specific request for the evidence in question, and the prosecutor did not give you that evidence, there need only be a "reasonable possibility" that the evidence would have changed the outcome. ²⁶ The reasonable probability test is harder to satisfy than the reasonable possibility test. Under the reasonable probability test, the undisclosed evidence receives the same weight as it would have been given had it been introduced at trial. Thus, the trial court reviewing an Article 440 motion must determine how the evidence would have affected the jury's deliberations. While you do not have to show that, with the evidence, you would not have originally been convicted, the evidence must be strong enough to call into question the fairness of your conviction. ²⁷ On the other hand, the reasonable possibility test focuses on the evidence withheld, and the court must determine whether the failure to disclose it may have contributed to the verdict. ²⁸ Additionally, the evidence in both cases must be admissible in court. For example, "polygraph" (lie detector) test results suggesting that a witness lied are of no use since they are not admissible as evidence.²⁹Brady material may also include evidence in the possession of other law enforcement agencies involved in your prosecution (for example, FBI Crime Lab notes). However, if an out-of-state agency refuses to turn over materials, the prosecution cannot be held responsible for failure to disclose.³⁰

(7) After your trial, you uncovered new evidence that you could not have discovered before or during your trial. To succeed on this ground, you must show that the evidence:

(a) will probably change the result in your case if a new trial is granted,

(b) was discovered after the trial,

(c) could not have been discovered before or during the trial by the exercise of "due diligence" (proper research),

(d) is material to the issue of your guilt, and

(e) does not simply duplicate or contradict other evidence. ³¹ Furthermore, if you would like to make an Article 440 motion on the grounds of newly discovered evidence, you must make the motion within a reasonable time after you find the new evidence. But you can only make an Article 440 motion on the basis of newly discovered evidence if you were found guilty after a full trial. If you pleaded guilty, you cannot make an Article 440 motion on the basis of newly discovered evidence. ³²

(8) Your conviction was obtained in violation of your constitutional rights.³³ Chapter 13 of the JLM, "Federal Habeas Corpus," provides a long list of possible violations of your rights under the Constitution. You may raise any of these violations in your Article 440 motion as long as they are applicable to your case and your motion satisfies the conditions described in Part B(3) of this Chapter.³⁴ For example, if you do not include your constitutional attack in your direct appeal of your conviction, you will not be able to make an Article 440 motion based on that constitutional claim later on, unless your claim falls into one of the exceptions described in Part B(3) of this Chapter.³⁵

In addition to federal constitutional violations, you may also raise violations of your rights under the New York State constitution. These rights are generally very similar to your federal constitutional rights. For example, the law under both constitutions forbids attorneys from intentionally discriminating against people by race or gender in selecting a jury. ³⁶ This claim could be raised as a violation of your rights under the New York State constitution and under the U.S. Constitution.

You should be aware that some of your rights under the New York State constitution are broader than the same rights under the U.S. Constitution. For example, the New York State constitution provides you with greater protection against unreasonable police searches than the U.S. Constitution.³⁷ The New York State constitution also provides you with greater protection against a court imposing a longer sentence upon you after a successful appeal.³⁸ In addition, the New York State constitution requires a prosecutor to supply you with more evidence than the U.S. Constitution requires. ³⁹ Finally, your right to a lawyer is broader under the New York State constitution than the U.S. Constitution. ⁴⁰

You should include claims of state constitutional violations in your Article 440 motion. If you claim a violation of a specific federal constitutional provision (for example, the Fourth Amendment's prohibition against unreasonable searches and seizures), it is a good idea to cite the equivalent state constitutional provision (which, in this example, would be Article I, Section 12 of the New York State constitution).

Another example of state and federal constitutional violations that can be raised in an Article 440 motion is ineffective assistance of counsel at trial. This is a claim that states your lawyer did not comply with professional standards while representing you, and there is a reasonable probability your case was negatively affected.⁴¹ You should be aware that in New York, you may not make a claim of ineffective assistance of counsel solely because your lawyer unsuccessfully used a certain trial strategy-even if that strategy was offensive, outrageous, ⁴² daring, or innovative. ⁴³ In addition, you cannot simply claim that your lawyer was ineffective. You must identify the specific acts or omissions of counsel that you believe were so ineffective that you were deprived of your right to counsel. Then, you must also show that this lack of counsel prejudiced your defense so much that the trial was not a fair trial. ⁴⁴ For example, it is unlikely that an error by counsel, even if professionally unreasonable, would result in setting aside the judgment if the error had no effect on the judgment. However, if you can show that your attorney had a conflict of interest while representing you, and that this conflict made the attorney's performance worse, courts will presume that you were prejudiced.⁴⁵ Your attorney would have had a conflict of interest if your attorney had a work-related reason or a substantial personal reason to give you less than a full effort. One possible reason would be if your attorney, without telling you or the judge, also represented a witness who testified against you. ⁴⁶

(b) Motion to Set Aside Sentence

Unlike the Article 440.10 motion to challenge your conviction (discussed above), an Article 440.20 motion attacks your sentence as unauthorized, illegally imposed, or in some other way invalid. ⁴⁷ A sentence is unauthorized if it is longer than the law allows.⁴⁸ For example, third degree burglary, a Class D felony, ⁴⁹ carries a maximum sentence...