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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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James L. Riotto
Criminal Defense Lawyer

James L. Riotto is an accomplished criminal defense attorney serving clients in New York. With an extensive background in law enforcement and criminal prosecution, his approach to each case is unique and informed by years of experience with the New York criminal justice system. As a graduate from Albany Law School and before going on to start his own practice, James worked at the Albany County District Attorney's Office, where he helped prosecute many DWI offenses. His inside knowledge of the tactics used to gain convictions provides him with a particular advantage when defending against DUI and other criminal charges.

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Adam Staier
Of Counsel

About Attorney Adam Staier has spent the last seven years practicing criminal defense law throughout upstate New York and the Capital Region. He began his legal career through internships in civil law, indigent legal representation and federal energy law regulation. Finding a passion in criminal law, Mr. Staier held internships handling both prosecution and defense…

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