If you were convicted of a crime and served your time, you may still face many consequences of the conviction that impact your ability to move forward.

Fortunately, there may be a legal remedy available to overturn your conviction and set it aside for exoneration: a Motion to Vacate Conviction, also known as Motion 440.10 in New York.

What Is a Motion to Vacate a Conviction in New York?

Under New York Criminal Procedure Law Section 440.10, you can make a move to vacate a conviction based on grounds that:

  • The court did not have jurisdiction of the action or of the person;
  • The judgment was procured by duress, misrepresentation, or fraud;
  • The prosecutor or court knew that material trial evidence was false;
  • Material trial evidence was procured in violation of your rights under the NY or federal constitution;
  • You were incapable of understanding or participating in the trial due to mental disease or defect;
  • There was improper or prejudicial conduct that doesn’t appear in the record but would require reversal on appeal;
  • New evidence was discovered that would have resulted in a more favorable verdict;
  • New forensic [deoxyribonucleic acid] DNA testing demonstrates there is a “substantial probability” you are innocent;
  • The judgement was obtained in violation of your rights under the NY or federal constitution.

There are also special provisions to make it easier to vacate a conviction in prostitution cases if you were a victim of sex trafficking.

Your Motion to Vacate Conviction will be denied if the issue was already determined in an appeal, unless there have been retroactive changes to the law since then. Also, it will be denied if the issue can be appealed or is pending appeal or if you failed to appeal on those grounds during the period where you were legally able to do so.

There are also situations where it is up to judicial discretion to deny the motion:

  • If the facts support the motion, but you “unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal”;
  • If the motion raises an issue that was previously determined in a court proceeding other than an appeal;
  • If a previous Motion to Vacate Conviction could have raised the issue but did not.

How to Seek Post-Conviction Relief in New York

The best way to determine if Motion 440.10 to Vacate a Conviction is appropriate for your case if to speak to an experienced post-conviction relief attorney.

At Hubert Law Office, we will provide an honest assessment of your case and fight hard for your rights. Even if a Motion 440.10 isn’t the right fit for your case, there may be other post-conviction legal remedies available to you, such as including sealing your criminal record, a Certificate of Relief from Disabilities, a Certificate of Good Conduct, a Writ of Habeas Corpus, or a Writ of Coram Nobis.

Reach out to us by calling 718-522-4646 or filling out our contact form.

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