N.Y. CPL. LAW § 440.10 : NY Code - Section 440.10: Motion to vacate judgment

Search N.Y. CPL. LAW § 440.10 : NY Code - Section 440.10: Motion to vacate judgment

1.    At any time after the entry of a judgment, the court in which it
  was entered may, upon motion of the defendant, vacate such judgment upon
  the ground that:
    (a)  The court did not have jurisdiction  of  the  action  or  of  the
  person of the defendant; or
    (b)    The judgment was procured by duress, misrepresentation or fraud
  on the part of the court or a prosecutor or a person acting  for  or  in
  behalf of a court or a prosecutor; or
    (c)    Material  evidence adduced at a trial resulting in the judgment
  was false and was, prior to the entry of  the  judgment,  known  by  the
  prosecutor or by the court to be false; or
    (d)    Material evidence adduced by the people at a trial resulting in
  the judgment was procured in violation of the defendant's  rights  under
  the constitution of this state or of the United States; or
    (e)   During the proceedings resulting in the judgment, the defendant,
  by reason of mental disease or defect, was incapable of understanding or
  participating in such proceedings; or
    (f)   Improper and prejudicial conduct not  appearing  in  the  record
  occurred  during  a trial resulting in the judgment which conduct, if it
  had appeared in the record,  would  have  required  a  reversal  of  the
  judgment upon an appeal therefrom; or
    (g)    New  evidence has been discovered since the entry of a judgment
  based upon a verdict of guilty after trial, which could  not  have  been
  produced  by  the  defendant at the trial even with due diligence on his
  part and which is of such character as to create a probability that  had
  such  evidence  been  received  at the trial the verdict would have been
  more favorable to the defendant; provided that a motion based upon  such
  ground  must  be  made  with  due  diligence after the discovery of such
  alleged new evidence; or
    (h)   The judgment was  obtained  in  violation  of  a  right  of  the
  defendant under the constitution of this state or of the United States.
    2.   Notwithstanding the provisions of subdivision one, the court must
  deny a motion to vacate a judgment when:
    (a)   The ground or  issue  raised  upon  the  motion  was  previously
  determined  on the merits upon an appeal from the judgment, unless since
  the time of such appellate determination there has been a  retroactively
  effective change in the law controlling such issue; or
    (b)  The judgment is, at the time of the motion, appealable or pending
  on appeal, and sufficient facts appear on the record with respect to the
  ground or issue raised upon the motion to permit adequate review thereof
  upon such an appeal; or
    (c)  Although sufficient facts appear on the record of the proceedings
  underlying  the  judgment  to  have  permitted,  upon  appeal  from such
  judgment, adequate review of the ground or issue raised upon the motion,
  no  such  appellate  review  or  determination  occurred  owing  to  the
  defendant's  unjustifiable  failure  to take or perfect an appeal during
  the prescribed period or to his  unjustifiable  failure  to  raise  such
  ground or issue upon an appeal actually perfected by him; or
    (d)   The ground or issue raised relates solely to the validity of the
  sentence and not to the validity of the conviction.
    3.  Notwithstanding the provisions of subdivision one, the  court  may
  deny a motion to vacate a judgment when:
    (a)   Although facts in support of the ground or issue raised upon the
  motion could with due diligence by the defendant have readily been  made
  to  appear on the record in a manner providing adequate basis for review
  of such ground or issue upon an appeal from the judgment, the  defendant
  unjustifiably  failed  to  adduce  such matter prior to sentence and the

  ground or issue in question was not subsequently determined upon appeal.
  This paragraph does not apply to a motion based upon deprivation of  the
  right  to  counsel  at  the  trial or upon failure of the trial court to
  advise the defendant of such right; or
    (b)    The  ground  or  issue  raised  upon  the motion was previously
  determined on the merits upon a prior motion or proceeding in a court of
  this state, other than an appeal from the judgment, or upon a motion  or
  proceeding   in   a  federal  court;  unless  since  the  time  of  such
  determination there has been a retroactively effective change in the law
  controlling such issue; or
    (c)   Upon a previous  motion  made  pursuant  to  this  section,  the
  defendant  was  in  a  position  adequately to raise the ground or issue
  underlying the present motion but did not do so.
    Although the court may deny the motion under any of the  circumstances
  specified  in  this subdivision, in the interest of justice and for good
  cause shown it may in its discretion grant the motion if it is otherwise
  meritorious and vacate the judgment.
    4.  If the court grants the motion, it must,  except  as  provided  in
  subdivision  five,  vacate the judgment, and must dismiss the accusatory
  instrument, or order a new trial,  or  take  such  other  action  as  is
  appropriate in the circumstances.
    5.    Upon  granting  the  motion  upon  the  ground, as prescribed in
  paragraph (g) of subdivision one, that newly discovered evidence creates
  a probability that had such evidence been  received  at  the  trial  the
  verdict  would  have  been  more  favorable to the defendant in that the
  conviction would have been for a lesser offense than the  one  contained
  in the verdict, the court may either:
    (a)  Vacate the judgment and order a new trial; or
    (b)    With the consent of the people, modify the judgment by reducing
  it to one of conviction for such lesser offense.    In  such  case,  the
  court must re-sentence the defendant accordingly.
    6.    Upon  a  new  trial  resulting from an order vacating a judgment
  pursuant to this section, the indictment is deemed to  contain  all  the
  counts  and to charge all the offenses which it contained and charged at
  the time the previous trial was commenced,  regardless  of  whether  any
  count was dismissed by the court in the course of such trial, except (a)
  those  upon  or  of  which the defendant was acquitted or deemed to have
  been acquitted, and (b)  those  dismissed  by  the  order  vacating  the
  judgment,  and (c) those previously dismissed by an appellate court upon
  an  appeal  from  the  judgment,  or  by  any  court  upon  a   previous
  post-judgment motion.
    7.  Upon an order which vacates a judgment based upon a plea of guilty
  to  an  accusatory  instrument  or  a  part  thereof, but which does not
  dismiss the entire accusatory instrument, the criminal action is, in the
  absence of an  express  direction  to  the  contrary,  restored  to  its
  prepleading  status  and  the accusatory instrument is deemed to contain
  all the counts and to charge all the offenses  which  it  contained  and
  charged  at the time of the entry of the plea, except those subsequently
  dismissed under circumstances specified in paragraphs  (b)  and  (c)  of
  subdivision  six.    Where  the plea of guilty was entered and accepted,
  pursuant to subdivision three of section 220.30, upon the condition that
  it constituted  a  complete  disposition  not  only  of  the  accusatory
  instrument underlying the judgment vacated but also of one or more other
  accusatory  instruments  against  the defendant then pending in the same
  court, the order of vacation completely restores such  other  accusatory
  instruments;  and  such is the case even though such order dismisses the
  main accusatory instrument underlying the judgment.