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.

It’s no secret that New York has some of the toughest gun laws in the country. This state takes firearm offenses seriously and has found new ways in recent years to crack down on guns. One of these more recent developments in the state’s firearm legislative efforts relates to ghost guns. 

Ghost guns are either homemade or privately made and do not have a serial number. Without a serial number, a gun is not traceable nor can it be registered with any law enforcement agency. State legislators asserting that these weapons pose an increased risk to public safety have focused their efforts on cracking down on ghost guns. Those found in violation of these ghost gun laws can face serious penalties and long-lasting consequences.

What Are New York’s Ghost Guns Laws? 

Ghost guns are often built with kits sold through private sales or at gun shows. The kits include the parts and equipment needed to make a homemade gun. Individual parts are readily available online and, with the use of metal casting equipment or 3-D printing technology, a ghost gun can be entirely made at home. Not only do ghost guns lack a traceable serial number, but those who purchase the necessary parts and equipment to make a ghost gun do not need to go through any kind of background check.

The State of New York requires the registration of all handguns (long guns need not be registered). To try and close the ghost gun loophole, New York’s governor signed both the Jose Webster Untraceable Firearms Act and the Scott J. Beigel Unfinished Receiver Act into law back in 2021. The laws made it illegal to possess or sell ghost guns and any gun parts without a serial number, including frames and receivers. Furthermore, it is now prohibited for a person to have a gun kit or part shipped to an address in the State of New York.

New York law also prohibits guns that cannot be detected by security screenings like metal detectors. Furthermore, those who are prohibited by law from owning firearms cannot possess or manufacture firearm or gun parts. This means that, regardless of serial number and registration requirements, those who are legally prohibited from owning a firearm cannot possess or manufacture firearm parts such as a barrel, slide, cylinder, frame, or receiver.

Penalties for ghost violations are steep. If you are found to possess a ghost gun without a license, whether it be at your home or your place of business, you could potentially face a Class E felony charge. Conviction of a Class E felony can mean up to 4 years in prison, fines, loss of civil liberties, and difficulty securing a job and housing.

Central New York Criminal Defense Attorneys

Have you been charged with a ghost gun violation? Get dedicated criminal defense representation by your side. The team at CDH Law will fight for you. Contact us today.

As soon as you are arrested and charged with a crime, it is a race against the clock. Things will move quickly. Prosecutors will not delay in gathering evidence as they work to build a case against you. Your best opportunities to negotiate and have the evidence gathered in support of your defense happen sooner rather than later. As such, there is no time to waste. It’s important to retain trusted legal counsel right away, and here’s why.

The Importance of Having a Criminal Defense Attorney on Your Side

Criminal defense attorneys have both knowledge and experience in the complex arena of criminal law. With such knowledge and experience come vast benefits that you would miss out on should you choose to go it alone. Without a criminal defense attorney, you may not:

• Know your legal options: Should you accept a plea deal? Should you negotiate an offered plea deal? Should you take your chances at trial? These are all questions that have high stakes, but the everyday person may not be able to effectively way in on. A criminal defense attorney can present you with your legal options and assess the cost-benefit analysis of each option so that you can make informed choices that can have a profound impact on your future.

• Know that your constitutional rights may have been violated: Over the course of the police investigation, your constitutional rights may have been violated without you even knowing what was happening. A lawyer can pinpoint potential violations and present them to court. Should it be found that law enforcement officers overstepped their constitutional bounds, then evidence could be tossed out and deemed inadmissible in court.

• Know what questions to answer and how: Really, answering any questions posed by law enforcement officers or prosecuting attorneys are best answered with your own attorney present. Your attorney can let you know what questions you should answer and which questions you shouldn’t. Furthermore, your attorney can guide you on how you should present your answers to law enforcement officers and in court.

The fact of the matter is that criminal laws are complicated. The criminal justice system can seem nearly impossible to successfully navigate on your own. Confronting these realities can be scary. This is especially true when you consider the penalties you will be subject to should your criminal charge end up being a criminal conviction. 

Those convicted of crimes can face harsh penalties. There may be a significant period of incarceration looming. Steep fines may be involved. There are also other collateral damages to include, such as the harm it will do to your reputation. Additionally, a criminal record will follow you to job applications and can put your ability to secure housing in jeopardy.

Criminal Defense Attorneys

Your fight against criminal charges is too important to do by yourself. Get the dedicated criminal defense team at CDH Law by your side. We begin our fight for you right away. Contact us today.

If you have been charged with a crime, now is not the time to resign yourself to fines and imprisonment. Taking action and hiring an experienced attorney to mount a solid defense in your favor can still turn the whole thing around. What type of defense can successfully clear you of the charges you face? Well, there are a number of different defense options that will vary in applicability depending on the facts and circumstances of your case. In some cases, an affirmative defense may be asserted to clear you of criminal liability for your actions.

What is an Affirmative Defense?

When successfully asserted, an affirmative defense will excuse a defendant from criminal liability, in whole or at least in part. It basically is a “yes, but…” defense. Yes, the defendant engaged in behavior that may be considered criminal in other contexts, but in this case extenuating circumstances present mean that no criminal liability should attach. The defendant must affirmatively raise this kind of defense and has the burden of proof in the matter. If successful in meeting this burden, an affirmative defense will prevent conviction of the defendant even if the prosecutor has met their burden of proving the defendant is guilty of the criminal charge beyond a reasonable doubt.

This is the basic explanation of what an affirmative defense entails, but it can still feel complicated to understand. As such, presenting examples of affirmative defenses can help clarify these otherwise murky waters. Take, for example, the affirmative defense of duress The duress affirmative defense states that the defendant did engage in the criminal behavior, but only did so under duress. Duress is the threat of serious bodily harm or death that is strong enough to induce a person to commit a crime.

Entrapment is another example of an affirmative defense. With entrapment, the defense is asserting that the defendant would not have committed the crime but for the inducement of a government agent. The government agent is oftentimes an undercover law enforcement officer.

One more example of an affirmative defense is necessity. With the necessity defense, the defense is asserting that the defendant reasonably believed that there was an imminent threat of harm to themselves or others and that the only way to avoid this imminent threat was to break the law. In order to successfully assert this defense, it also needs to be proven that the harm resulting from the violation of the law was less severe than the harm that the defendant sought to avoid in the first place.

Criminal Defense Attorneys

Are you facing criminal charges? Do not accept defeat before things have even begun. Reach out to the experienced criminal defense team at CDH Law. We will immediately begin working on your case and exploring all viable defense options to help exonerate you from all charges. Contact us today.

Being charged with a crime is a tough reality to face. Feelings of anxiety about how your case will proceed can be overwhelming. The charge as it stands as well as the associated penalties you may face may be even more severe than you expected. Fortunately, charges can change and what you are initially charged with may not be exactly what you end up being charged with. Charges and penalties are often reduced via plea bargaining, among other ways.

A plea bargain is a kind of compromise between you, the accused, and the prosecutor. Not only is plea bargaining common, but the court system relies on it to help move through an already oversaturated docket of cases. When a plea bargain is achieved, the prosecutor will offer something like a lower criminal charge or lesser sentence in exchange for you pleading guilty to the criminal charge and, thus, waiving your right to a trial by jury. By settling the matter out of court, everyone is spared the stress and uncertainty of trial. The court and prosecution save state resources in avoiding a full-blown criminal trial. It can often be a mutually beneficial arrangement for all involved.

Negotiation in Plea Bargaining

While a plea bargain may not always be an ideal solution, it can often be a great alternative to avoiding the potential conviction of a more severe criminal charge at trial. Additionally, accepting a plea bargain spares you the stress of a trial and avoiding court and legal fees as well. A plea bargain allows the prosecution and defense to quickly settle the case. The prosecution avoids going to trial, and you, the defendant, avoid the risk of a more severe penalty if convicted by a jury at trial.

There are different types of plea agreements. A charge bargain, for instance, allows the defendant to plead guilty to a lesser charge or to fewer charges than that which they were indicted for. A sentence bargain, on the other hand, provides the defendant with advance notice of what the sentence will be should a guilty plea be offered. Sentence bargaining usually occurs in cases where the defendant is being charged with really serious crimes. In most cases, the judge must approve of the sentence bargain. Many jurisdictions have strict limits in place for sentence bargaining.

There is another type of plea agreement that exists, but it is not used nearly as often as charge bargains or sentence bargains. Fact bargaining involves the defendant admitting to certain facts in return for an agreement from the prosecution not to introduce other specified facts into evidence. The admission made by the defendant means that the defendant is stipulating the truth or the existence of provable facts. Stipulating these facts eliminates the need for the prosecutor to have to prove them in court. In exchange, other facts may be excluded from the evidence that may prove less favorable in some way to the defendant’s case.

Syracuse Criminal Defense Attorneys

Negotiating a plea bargain takes skill and experience. That is what you will find with the dedicated criminal defense attorneys at CDH Law. Contact us today.

At a criminal trial, the prosecutor is likely to have a list of witnesses to put on the stand in order to provide testimony against the defendant. Witness testimony can be powerful and help the prosecutor meet the burden of proving a defendant guilty beyond a reasonable doubt. Fortunately, however, there are several ways of negating or at least reducing the impact witness testimony can have on a judge or jury. One such way is by impairing, or “impeaching,” the credibility of a witness. You see, the defendant has a constitutionally protected right to challenge witnesses for the prosecution. The defense attorney has the right to cross-examine every witness the prosecution presents. The defense attorney can impeach a witness’s credibility in order to show that the witness is unreliable or untrustworthy.

Impairing the Credibility of a Witness

When a witness is impeached, and credibility is called into question, the force of the witness’s testimony can be eliminated or, at the very least, significantly reduced. The credibility of a witness can be impaired due to a number of reasons. It could be shown that the witness is potentially lying on the stand, which would mean that the witness was committing the offense of perjury. Alternatively, it could be suggested that, while the witness may try to tell the truth, the witness is not recalling facts accurately. It could also be possible that the witness is being selective in the testimony being provided, omitting certain details while emphasizing others, for example.

In order to impair the credibility of a witness, it is unlikely that a defense attorney will ask the witness directly if the testimony is dishonest or inaccurate. Alternatively, a defense attorney is likely to employ a number of strategies to have such things revealed in other ways, such as calling a witness’s character into question or otherwise challenging the accuracy of the testimony being presented.

One commonly employed tactic for undermining the credibility of a witness is for the defense to present evidence of bias. When bias or even potential bias on the part of a witness is introduced, the witness’s capacity for telling the truth is called into question. Bias can be shown in a number of ways, including presenting evidence of a witness’s relationship to a party involved in the case. When a witness’s personal feelings towards a person are considered, the testimony relating to that individual can be undermined.

The credibility of a witness may also be questioned if it can be shown that the witness has ulterior motives for the testimony provided. A witness, for instance, may have a personal interest in the outcome of the case and may even be under threat of being criminally charged as well. The defense team has the right to question a witness about any criminal charges that may have recently been dismissed or if there is an agreement in place between the witness and the prosecution.

Syracuse Criminal Defense Attorneys

At CDH Law, our dedicated team of criminal defense attorneys is here to fight for you against all charges you may face. Contact us today.