23.5 - 2. Motion To Vacate Judgment

• Jurisdiction: New York

2. Motion to Vacate Judgment

After sentencing, the trial court may vacate its judgment on the following grounds:³²⁷⁵

a. Lack of personal or subject matter jurisdiction;

b. Duress, misrepresentation or fraud on the part of the court, the prosecutor or their agents; ³²⁷⁶

c. Introduction at trial of false material evidence, known to be false by the court or prosecutor;

d. Introduction of evidence procured in violation of the defendant’s constitutional rights;

e. The defendant’s incompetence to take part in the proceedings leading to the judgment;

f. Improper and prejudicial conduct during the trial, not appearing on the record, that would have required reversal on appeal;

g. Newly discovered evidence; ³²⁷⁷ or

h. The judgment was obtained in violation of the defendant’s constitutional rights.

These grounds taken together are extremely broad. In addition, the statute contains no time limit for making the motion, except that one based on newly discovered evidence must be made “with due diligence after the discovery of such alleged new evidence.”³²⁷⁸ The Court of Appeals “is empowered to conduct a review of the lower courts’ summary denial of a defendant’s CPL 440.10 (1) (g) motion, and to determine whether that denial constituted an abuse of discretion as a matter of law without running afoul of the jurisdictional limitations set forth in NY Constitution, article VI, § 3 (a).”³²⁷⁹ The motion must be made in the court that entered the judgment.³²⁸⁰

The broad grounds for the § 440.10 motion are balanced by its provisions aimed at preventing it from being used as a substitute or second opportunity for an appeal. Thus, despite proof of a ground listed above, the court must deny the motion if (1) the issue has been decided on appeal from the judgment; (2) an appeal is pending, and sufficient facts appear on the record to permit review there; (3) the defendant unjustifiably failed to raise the issue on appeal from the judgment, despite sufficient facts in the record;³²⁸¹ or (4) the ground or issue relates solely to the validity of the sentence and not to the validity of the conviction.³²⁸²

The statute also provides that the court may deny the motion if (1) facts could “with due diligence” have been made part of the record to allow for review on appeal; (2) the same issue was decided in a prior motion or proceeding (other than an appeal); or (3) the defendant unjustifiably failed to raise the issue on a prior motion under § 440.10.³²⁸³

The procedures for motions to vacate judgments under § 440.10 are basically...