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What is a 440 motion?

Being accused of a crime, even when it is a traffic violation, can cause a person much anxiety. He or she does not want this on their record, and they certainly do not want to live with the consequences that befall upon them. Thus, many defendants seek to avoid penalties through a legal defense. While this is a great way to avoid charges, it is not the only way to clear one's name. It is possible for individuals in New York and elsewhere to vacate a judgment through a specific motion.

What is a 440 motion? This is known as a motion to vacate judgment. A defendant is able to file this motion any time after the entry of judgment. A judgment can be vacated on certain grounds. This could occur is the court did not have jurisdiction of the action or the defendant, the judgment was procured by duress, misrepresentation or fraud on the part of the court or prosecutor, material evidence at trial was false and known to be false by the prosecutor, the defendant was unable to understand the proceedings because of a mental disease or defect and improper or prejudicial conduct not appearing on the record occurred during trial.

Other reasons include that new evidence has been discovered since the entry of judgment, forensic DNA testing of evidence performed since the entry of judgment is available, the judgment was obtained in violation of a right of the defendant protected by the constitution or the judgment is a conviction where the arresting charge was for loitering for the purpose of engaging in prostitution, provided that the defendant was not engaged in acts related to prostitution. If the court grants the motion, it must vacate the judgment and dismiss the accusatory instrument or order a new trial.

Being convicted of a crime is a difficult position to be in; however, there are options that follow a court judgment. It may be possible to take action by filing motions to either vacate the judgment or even seek a new trial. Therefore, it is important to be aware of your rights at any point of a criminal proceeding.

Source: Ypdcrime.com, "440.10 Motion to vacate judgment," accessed April 7, 2018

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Law Office of James L. Riotto | 30 West Broad Street, Suite 306 | Rochester, NY 14614 | Phone: 585-371-5633 | Map & Directions
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