Motions to Vacate a Criminal Conviction (CPL 440.10)

Challenging a conviction after the case is over

A conviction is not always the end of the case

New York's Criminal Procedure Law gives people a way to challenge a conviction after judgment — sometimes many years later. A motion under CPL 440.10 asks the court that entered the judgment to vacate it because of a defect that was not, or could not be, corrected on direct appeal. A related motion under CPL 440.20 asks the court to set aside a sentence that was unauthorized, illegally imposed or otherwise invalid as a matter of law.

These motions are technical and fact-driven. They usually depend on evidence outside the trial record — sworn affidavits, prior counsel's file, immigration records, forensic or medical reports — and on presenting that evidence in a way the court will credit.

Common grounds for a CPL 440.10 motion

• Ineffective assistance of counsel. Your lawyer failed to investigate, failed to advise you correctly or otherwise did not provide meaningful representation, and it affected the outcome of your case.
• Immigration misadvice (Padilla claims). Defense lawyers must advise noncitizen clients about the deportation consequences of a guilty plea (Padilla v. Kentucky, 2010). If you were never told — or were told incorrectly — that your plea would not affect your immigration status, the plea may be challenged.
• Newly discovered evidence. After a conviction at trial, new evidence that could not have been found with due diligence and would probably have led to a more favorable verdict (CPL 440.10(1)(g)). The motion must be made with due diligence after the evidence is discovered.
• Violation of constitutional rights. The judgment was obtained in violation of your rights under the New York or United States Constitution (CPL 440.10(1)(h)).
• False evidence, fraud or misconduct. Material evidence was false and known by the prosecutor or the court to be false, or the judgment was procured by duress, misrepresentation or fraud.
• Unlawfully obtained evidence or incapacity. Material evidence was obtained in violation of your constitutional rights, or you were not mentally capable of understanding or participating in the proceedings.

Other provisions allow motions based on favorable DNA test results and relief for survivors of human trafficking convicted of certain offenses. We review every available ground in your case.

Limits the court will apply

Courts must deny claims that were already decided on the merits on appeal, and generally deny claims that could have been raised on direct appeal from the trial record but were not. A 440.10 motion is therefore strongest for problems that are outside the record — what your lawyer told you in private, the investigation that was never done, the evidence that surfaced later. Careful drafting matters, because a motion without sworn factual support can be denied without a hearing.

What happens if the motion is granted

When a conviction is vacated, the case usually returns to where it stood before the plea or verdict. The prosecution may re-prosecute, offer a different disposition or dismiss the case. For a noncitizen, a plea to a different offense — or a dismissal — can change the immigration picture entirely. If the motion is denied, you may ask the Appellate Division for permission to appeal.

Vacating a conviction for immigration purposes

Immigration authorities give effect to a vacated conviction only when it was vacated because of a procedural or substantive defect in the criminal proceeding — such as ineffective assistance of counsel or a constitutional violation — and not merely to avoid immigration consequences or for rehabilitative reasons (Matter of Pickering, BIA 2003). A similar rule applies to changes to a sentence (Matter of Thomas & Thompson, 2019). How a motion is framed and supported therefore matters as much as whether it is granted.

Because Usher Law Group practices both criminal and immigration law, we build post-conviction motions with the immigration case in mind — for clients in removal proceedings, in immigration detention, or preparing to apply for a green card or citizenship.

Motions to vacate outside New York state court

Federal convictions — 28 U.S.C. § 2255

A person serving a federal sentence, including supervised release, can move to vacate, set aside or correct it under 28 U.S.C. § 2255 — for example, on grounds of ineffective assistance of counsel. The motion generally must be filed within one year after the conviction becomes final, and second or successive motions are sharply restricted.

Federal writ of error coram nobis

If you are no longer in custody but still suffer serious consequences from a federal conviction — such as removal proceedings — a writ of error coram nobis may be available to correct fundamental errors.

New Jersey post-conviction relief

In New Jersey, a petition for post-conviction relief under Court Rule 3:22 generally must be filed within five years after the judgment, with limited exceptions for excusable neglect.

Other New York post-conviction relief

• CPL 440.20 — setting aside an unauthorized or illegal sentence
• CPL 440.46 — resentencing for certain drug felonies under New York's drug law reforms
• CPL 440.47 — resentencing for survivors of domestic violence under the Domestic Violence Survivors Justice Act
• Record sealing — see sealing and the Clean Slate Act

Start with a case review

Every post-conviction case begins with the records: the certificate of disposition, the plea and sentencing minutes, the court file and, where possible, prior counsel's file. We gather and review them, identify realistic grounds, and tell you candidly whether a motion is worth pursuing.

Frequently asked questions