The 440 Motion

Something is on the record if it appears in the transcript or if it was introduced into evidence at trial as an exhibit. If the facts relevant to a particular issue do not appear in the transcript or as part of an exhibit introduced into evidence, then the issue is off the record. For example, suppose that the defense attorney learns after the trial is over that the prosecutor withheld evidence from the defense. If the issue was not mentioned in the trial court then the issue would be off the record. As another example, assume that a witness previously unknown to the defense comes forward after the trial is completed and offers information beneficial to the defense. If the existence of this witness is not mentioned anywhere in the trial record, then the matter would be off the record and could only be raised by filing a 440 motion.

Some issues can be partially on the record and partially off the record. Such issues are referred to as hybrid issues and they can be litigated as part of a 440 motion. For example, assume that the trial attorney failed to object to the introduction of certain evidence which the defendant believes was harmful to him. The failure of the attorney to register the objection would be clear from the record. However, the trial attorney could have had a good reason for failing to object but this reason would usually not be on the record. If the reason why the attorney failed to object is not on the record, then the claim that the attorney failed to object is a hybrid issue.

A 440 motion must be filed with the judge who presided over the trial. If the trial judge is no longer on the bench, then the defendant will have to contact the appropriate court clerk to determine what judge the motion should be presented to.

If that trial judge denies the motion, the defendant can ask the intermediate appellate court for permission to appeal that denial. Only if permission to appeal is first granted, can the defendant appeal an adverse decision on a 440 motion made by the trial judge. This contrasts with a direct appeal where the defendant has an automatic right to appeal to the Appellate Division.

To appeal a trial court’s denial of a 440 motion, the defendant must file a motion with the appropriate appellate division requesting permission to appeal. This motion is referred to as a leave application. That motion must include a notice of motion, a supporting affirmation or affidavit and copies of all submissions sent to the trial court when the 440 motion was originally filed in that court. If that permission is granted, then the defendant must file a notice of appeal in the manner indicated in the criminal procedure law. The defendant may not file the notice of appeal until such time as permission to appeal is granted by the Appellate Division. There are very strict and short time limits for filing a leave application and any subsequent notice of appeal. If the leave application to the Appellate Division is denied, then the defendant may put in a further leave application to the New York Court of Appeals.

Affidavits will have to be drafted and submitted along with the 440 motion. Those affidavits will contain the off the record information that is relevant to the issue to be litigated. The appellate courts carefully scrutinize the contents of these affidavits and expect that they include certain information. If even one sentence or one word is either left out or misstated it can take a winning case and turn it into a losing case. The person drafting the 440 motion should have experience in handling this kind of litigation. Handling a direct appeal is very different from handling a 440 motion. A lawyer with extensive experience handling direct appeals may not have the knowledge or experience necessary to properly draft a 440 motion. Mr. Theophilos has extensive experience drafting and litigating 440 motions. It is inadvisable for the defendant to draft the affidavit in support of his 440 motion without input from counsel experienced in this kind of litigation.

A defendant should not attempt to procure an affidavit from a witness on his own on the theory that if there is some mistake in the affidavit that he drafts a second affidavit can always be drafted by an attorney. Once a witness signs the affidavit it may become discoverable. Saying that an affidavit is discoverable is a fancy way of saying that the prosecutor has a right to see it once litigation is initiated. You do not want to be put in a position of turning over an affidavit to a prosecutor that contains errors.

An affidavit in support of a 440 motion must be sworn to before a notary or be sworn to in the form of an affirmation permitted by the CPLR.

CASE LAW RELEVANT TO 440 MOTIONS

The fact that a defendant’s ineffective assistance claim was denied on direct appeal in no way precludes or undercuts a similar claim made as part of a 440 motion. People v. Pendergraph, 170 A.D. 3d 1630.

If a trial court denies a 440 motion, the defendant can ask for permission to appeal to the Appellate Division. However, if that permission is granted, the defendant may not argue for reversal based on an issue not included in the original 440 motion that was submitted to the trial court. People v. Annis, 134 A.D. 3d 1433.

If a defendant in a 440 motion is alleging an error not attributable to his trial counsel, such as a claim that the judge coerced a plea or that the prosecutor broke a sentence promise, then the defendant is expected to get an affidavit from his trial attorney or at least offer an explanation as to why he could not procure such an affidavit. People v. Radcliffe, 298 A.D. 2d 533.

A defendant in a 440 motion may request that his conviction from a guilty plea be set aside because his lawyer did not give him proper legal advice necessary for him to make a knowing and informed decision about whether to accept the plea. However, for the motion to be successful, the defendant must also allege that he would not have taken the plea had he been given the proper advice. People v. Balcerak, 114 A.D. 3d 833.

A decision on a 440 motion is not a judgment but is instead an order of the court. Accordingly, if the defendant files a notice of appeal from a decision made by a trial court level judge on a 440 motion, the notice of appeal should state that the defendant is appealing from an order of the court not from a judgment. People v. Jones, 114 A.D. 3d 1272.

If an attorney gives erroneous advice to his client which then becomes the basis for a 440 motion, the attorney’s error is not necessarily cured because the judge on some other occasion gave the defendant the proper advice. People v. Mebuin, 158 A.D. 3d 121, 130.

overview

New York criminal appeals lawyer Tom Theophilos reviews the basics of CPL 440 motions as one potential post conviction option for people convicted of crimes in New York State.

A 440 motion is a complicated motion that often requires that affidavits be prepared in order to supplement the record created during the defendant’s trial. It is important that these affidavits be prepared by an attorney with significant experience handling 440 motions. The slightest error in the preparation of such affidavits can cause an otherwise meritorious case to be procedurally defaulted.

Tom Theophilos has significant experience handling 440 motions. He can properly evaluate your case to determine whether such a motion would be a viable option for you and then, if necessary, prepare such a motion on your behalf.