20-b-3 When You Can Get Relief Under Article 440

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

20-B-3. When You Can Get Relief Under Article 440

There are strict requirements for making a motion to vacate judgment under Section 440.10. In contrast, the requirements for making a motion to set aside a sentence under Section 440.20 are more relaxed. The requirements for making each type of motion are discussed separately below.

(a) When You Are Not Entitled to File a Motion to Vacate a Judgment Under Section 440.10

There are four circumstances in which the court has no choice but to deny your motion to vacate a judgment under Section 440.10. 66 These four circumstances are as follows:

(1) You cannot make a Section 440.10 motion if your claim was raised on appeal and the court denied your complaint on the merits (in other words, when the appellate court considered your claims and decided that they were not sufficient to overcome your guilty conviction). 67 There is an exception to this rule. The exception applies when the law changed after your appeal was decided, and the courts apply the new law "retroactively" (in other words, the courts apply a new law to old cases which have been tried, decided, or appealed before the change in the law occurred).68 The Court of Appeals will only give full retroactivity to new laws which aim to protect the fact-finding process from unreliably obtained information which relates directly and substantially to guilt or innocence (in other words, to prevent a defendant from being found guilty on unreliably obtained information). 69 "Full retroactivity" means you can raise the new law in a post-conviction proceeding, such as an Article 440 motion, even though you were convicted and had appealed before the new law came into effect. However, full retroactivity has been applied very rarely in New York. 70 The courts decide whether a new rule should apply retroactively after considering the following three factors:

(a) the new rule's purpose (that is, whether the purpose of the new law is to protect the fact-finding process from unreliably obtained information which relates directly to guilt or innocence),

(b) the extent of the reliance on the old rule (in other words, whether there were a great number of cases and, as a result, a large number of defendants were convicted and incarcerated under the old rule), and

(c) the effect on the administration of justice in applying the new rule retroactively (in other words, because the old rule applied to so many cases, making the new rule retroactive would result in too many overrulings and retrials, and it would over-burden the criminal courts. In such a situation, the courts are unwilling to apply the new rule retroactively).71

(2) You cannot make a Section 440.10 motion on the basis of an error that you may still raise in an appeal of your conviction, or that you have already raised in an appeal that is pending (an appeal is pending if the appeals court has not yet handed down a decision). 72 Remember, Article 440 is not a substitute for an appeal. However, you may complain in a Section 440.10 motion about an error without first appealing the error if your trial record does not contain sufficient facts to allow an appeals court to review the error. 73 For example, if you have found new evidence that could not have been available at the time of the trial, and therefore was not included in the record, yet would have been more favorable to you, you may bring a Section 440.10 motion directly.74 But be very careful about deciding to use an Article 440 motion to complain about a decision without first bringing a direct appeal. The court reviewing your Article 440 motion decides if your trial record contains sufficient facts for an appeal. If the court finds that there are sufficient facts in your trial record for direct appeal, your Article 440 motion will be dismissed. If you did not file or pursue a direct appeal in the meantime, it may be too late to do so.75 Sometimes there may be doubt as to whether there are sufficient facts in the record for an appeals court to review. In that situation, you should be careful to file a timely direct appeal, and you should not just rely solely on an Article 440 motion in case the motion is denied.76 However, you may complain in a Section 440.10 motion without first appealing if you were a victim of sex trafficking. 77 In order to qualify for this exception, you must have been arrested for prostitution under N.Y. Penal Law § 230.00 or for loitering for the purpose of prostitution under N.Y. Penal Law § 240.37. Additionally, your participation in the offense must have been a result of having been a victim of sex trafficking. 78

(3) An error cannot be brought up in an Article 440 motion unless you brought it up in your appeal or you have a good excuse for not raising the issue on appeal. If you appealed only your sentence and not your conviction or if you did not include the error in your appeal, then you may not bring up the error. 79 One example of a good excuse would be where the error was overlooked due to ineffective assistance of appellate counsel. 80 (But if you believe your lawyer was ineffective because your lawyer did not tell you of your right to appeal, you must make a motion instead under N.Y. Crim. Proc. Law Section 460.30.) Another good excuse is where an appeal seemed useless due to the state of the law at the time, but the law changed later and courts applied the new law retroactively. Because of those changes, you can argue that your conviction is fundamentally unfair. 81

(4) The judge will deny your Section 440.10 motion if it is based on an issue that involves only the validity of your sentence, rather than your conviction. 82 Instead, you must complain about your sentence in a motion to set aside your sentence under N.Y. Crim. Proc. Law § 440.20, not Section 440.10.

(b) When You May File a Motion to Vacate Judgment Under Section 440.10

While a judge must deny your Section 440.10 motion in the four circumstances listed above, there are other circumstances in which a judge may deny, but is not required to deny, your Section 440.10 motion. 83 These circumstances are as follows:

(1) You did not "preserve the issue for review on appeal." This means that you did one or more of the following things: you did not object at the trial to errors that happened during the trial, you did not ask the court to give a particular instruction to the jury, you did not ask the court to make a ruling on an issue, you did not present facts that would support your claim and that you should have found through due diligence (proper research), or in some way you did not make sure that an issue would be in the trial record.84 The following are examples of some of the issues you may raise in an Article 440 motion even though the issues were not preserved (kept) for review on appeal.

(a) You may complain that you received ineffective, or bad, assistance of counsel at trial, but your claim depends on what information is found in your trial record. Since the trial record does not usually contain details of your lawyer's performance at trial, the New York Court of Appeals believes that an Article 440 motion is usually better than an appeal for an ineffective assistance of counsel claim. 85 However, if the trial record does contain facts that would allow an appellate court to review a claim of ineffective assistance of counsel, it is important that you raise the claim on direct appeal. 86

(b) You may raise an issue in your motion if you could not have raised the issue at trial because, at that time, you could not have discovered the important facts. 87 For example, in one Article 440 motion, a defendant complained that he was not told the prosecutor had an agreement with a witness against the defendant, even though defendant's counsel asked the prosecutor...

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