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FAQ about postconviction relief in New York

| Jul 2, 2020 | Criminal Defense |

Some individuals serving time for a crime in New York may qualify for postconviction relief. With a 440 motion, an individual can challenge a conviction based on unrecorded evidence.

If you or a loved one has received a conviction for a crime you did not commit, learn how to file a 440 motion in New York.

Who can file a 440 motion?

You can seek a new trial in New York under specific circumstances, such as:

  • Receipt of a prostitution conviction as a sex trafficking victim
  • A constitutional rights violation as a result of the trial or conviction
  • Existence of forensic DNA results or new evidence that calls your guilt into question
  • Failure of the trial record to reflect inappropriate actions or statements
  • Inability to understand the defense because of a mental disability
  • Occurrence of inaccurate evidence, duress, misrepresentation or fraud in the original trial
  • Conviction in a court that did not have authority over the alleged crime

What happens after a 440 motion?

After you submit this motion, the relevant court will determine whether the case has merit. The resulting investigation can take just a few months or several years depending on the circumstances of your case.

Unlike an appeal, which does not allow the introduction of new evidence and witnesses, a 440 motion can result in a new legal hearing. You and your attorney can call new witnesses, introduce new evidence and otherwise develop a case that refutes your original conviction.

If your 440 motion receives a denial, you have the right to file an appeal with the Appellate Division. This agency will then determine whether the court must hear your case. Even if you already filed a previous 440 motion, you can file another for the same conviction as long as the new motion is for a separate issue.

If you face immigration consequences such as deportation as a result of a conviction, a 440 motion can halt this process. A convicted person can file a 440 motion in New York at any time, even decades after the original trial.


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