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A CPL 440 (Criminal Procedure Law section 440) motion, commonly known as a 440 motion, allows a convicted criminal defendant to seek immediate judicial relief. A defendant may use this important procedural safeguard, an alternative to an appeal, to challenge a conviction. The grounds on which this motion is based are fairly limited, and the defendant will have the obligation to prove them.
If you or a loved one were found guilty of a crime, you should know about a 440 motion. Having experienced legal counsel representing you is the best way to put forth the strongest argument for why the court should grant your motion. Let Carden Dotzler Hammond, PLLC review your conviction and advise you of your rights.
The Basics of a 440 Motion
This motion is also known as a motion to vacate judgment. Unlike the underlying criminal case, in which the state bears the burden of proof, the convicted defendant has the duty of proving that grounds exist for the court to grant a 440 motion. The evidentiary standard, preponderance of the evidence, is less demanding than beyond a reasonable doubt; essentially, it means that the evidence is more likely than not to demonstrate that the conviction should be set aside.
The point of a 440 motion is to show that the court’s prison sentence is illegal. The defendant may raise the following issues:
- Lack of jurisdiction
- Prosecutorial, court, or juror misconduct
- New evidence
- DNA evidence
- Incompetency
- Violation of the defendant’s constitutional rights
- Participation in the offense was due to being a trafficking victim
- Certain changes in the law
There may be other issues that a criminal defendant can raise in support of a 440 motion. Regardless of the facts in your case, it is imperative that you speak with a knowledgeable Syracuse defense attorney right away if you have been convicted.
The Process for Seeking a 440 Motion
The defendant will need to draft a motion that sets forth the specific legal arguments and basis for asking the court to vacate the conviction. The defendant then must present the motion to the prosecution, which is not obligated to file a response. The court may hold a hearing to determine whether the defendant has presented credible issues of fact, although the judge may rule on the motion without a hearing.
These are some specific elements to include with the 440 motion:
- Notice of the motion
- Signed affirmation from the defendant’s attorney who files the motion
- Any relevant documents from the trial
- Transcripts of the court proceedings
- Affirmation from the trial attorney, if one is necessary
- Memorandum of law arguing in favor of the motion
- Any other relevant affidavits or documents
Although there is no deadline to file a 440 motion, it is strongly advised that the defendant file the motion as soon as possible. Waiting too long might give the court an excuse to deny the motion. There are also procedural reasons for filing the motion and preserving other avenues to challenge the conviction.
The judge will generally respond to the motion within 60 days, although for practical purposes it could take several months. If it has been at least 60 days since you filed your 440 motion and you have received no decision about it, a Syracuse criminal defense attorney can assist you.
Protecting Your Criminal Defense Rights Each Step of the Way
Were you convicted of a crime in Syracuse, and you believe the sentence is illegal? Do you have questions about mistakes or inappropriate behavior that occurred in the trial? Even if you are unsure as to whether your case merits a 440 motion, an attorney can uncover mistakes that may support it. Call CDH Law. We can review your conviction and recommend the best path forward. You can contact us today to schedule your confidential consultation.