N.Y. Crim. Proc. Law § 440.10

Section 440.10(1)(f) supplied the ground for vacatur based on withheld Rosario and Brady material; subsection (1)(g) concerns newly discovered evidence.

Tyson v. State · filed 1999-08-04(1)(f)

In conclusion I find the grounds for the County Court’s decision to have been narrowly granted, solely on the basis of CPL 440.10 (1) (f).

Section 440.10(1)(h) permits a court to treat a motion as properly brought under it despite an incorrect statutory citation in the notice when the motion raises constitutional grounds and the People are not prejudiced.

People v. K.C. · filed 2025-06-11(1)(h)

The defendant's affirmation does, however, correctly cite CPL § 440.10 (1) (h), which authorizes courts to vacate a judgment "obtained in violation of a right of the defendant under the constitution of this state or of the United States." Despite the improper notice, the People responded on the merits to defense counsel's constitutional arguments and therefore were not prejudiced. Thus, the court will construe the defendant's motion as having been properly made pursuant to CPL § 440.10 (1) (h).

Section 440.10(1) permits a motion to vacate a judgment at any time after judgment is entered and provides a way to present evidence outside the trial record.

Alexander v. Royce · filed 2021-03-30(1)

A motion pursuant to N.Y. C.P.L. § 440.10 to vacate a judgment may be raised “[a]t any time after the entry of a judgment.” N.Y. C.P.L. § 440.10(1). Such a motion would provide New York state courts a meaningful opportunity to review Petitioner’s false testimony claim, as it requires consideration of off-the-record evidence that could not be considered by the Appellate Division on direct review.

Section 440.10(1) leaves trial courts discretion to grant or deny a motion to vacate a judgment, with or without a hearing.

DINSIO, AMIL v. SUPREME COURT, APPELLATE DIVISION · filed 2015-02-06(1)

Trial courts are vested with the discretion to grant or deny a CPL article 440 motion, either with or without a hearing (see CPL 440.10 [1]; People v Saxton, 93 AD3d 1077, 1078, lv denied 18 NY3d 998; People v Boyd, 256 AD2d 170, 170, lv denied 93 NY2d 850), and the denial of such a motion is appealable only by leave of an intermediate appellate court (see CPL 450.15, 460.15; People v Jermain, 56 AD3d 1165, 1166, lv denied 11 NY3d 926).

Section 440.10 does not provide a motion to vacate a plea when the asserted error is clear from the face of the record.

People v. Williams · filed 2014-12-31

Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because “ ‘defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge’ ” (People v Peque, 22 NY3d at 182, quoting People v Louree, 8 NY3d 541, 546 [2007]).

Section 440.10 does not provide relief for counsel’s failure to file a requested notice of appeal; the proper recourse is a writ of error coram nobis.

People v. Schafer · filed 2012-04-03

However, under the circumstances of this case, the County Court properly denied the defendant’s motion pursuant to CPL 440.10, as the defendant’s proper recourse is an application for a writ of error coram nobis (see People v Syville, 15 NY3d 391, 400-401 [2010]).

A CPL 440.10 motion is unnecessary when the record on direct appeal is sufficient to decide an ineffective assistance claim.

People v. Nesbitt · filed 2011-11-03

As a preliminary matter, the record before us is sufficient, without the need for a CPL 440.10 motion, to determine whether counsel was effective (see People v Monroe, 6 AD3d 240 [2004], lv denied 3 NY3d 644 [2004]).

Section 440.10(1)(a) allows a defendant to move to vacate a judgment for lack of jurisdiction; the court cannot vacate it without the defendant’s motion.

SANDERS, SEAN, PEOPLE v · filed 2011-10-07(1)(a)

Notably, defendant never moved to vacate the 2003 judgment of conviction (see CPL 440.10 [1] [a]). ... A second prosecution, if allowed to proceed while the original conviction has not and cannot be vacated except on defendant’s motion, would accomplish the same result that was prohibited by the Court of Appeals in Campbell (60 NY2d at 168), where the defendant’s prior conviction was also illegally entered (see also United States v McIntosh, 580 F3d 1222, 1224).

Section 440.10 permits challenges to the validity of a conviction but does not authorize a trial court to permit a late notice of appeal.

People v. Syville · filed 2010-10-14

As we observed in Corso, CPL 440.10 provides no statutory avenue for relief for this category of ineffective assistance of counsel claims because it allows defendants to challenge the validity of judgments of conviction—not circumstances that occur post-conviction. If the relief a defendant is seeking is a direct appeal, that relief is not within the cadre of remedies a trial-level court may grant under CPL 440.10.

Section 440.10(1)(a) permits a defendant to move after judgment to vacate a conviction on jurisdictional grounds, even if the motion cites the wrong statute.

People v. Singh · filed 2009-08-26(1)(a)

Although the defendant cites the incorrect statutory provision (CPL 220.60, which allows a court to permit a defendant to withdraw a plea of guilty prior to sentencing) as the ground for his motion, this court will construe the instant motion as one made under CPL 440.10 (1) (a), which permits a court, at any time after the entry of a judgment, upon motion of the defendant, to vacate such judgment upon the ground that the court lacked jurisdiction of the action or the person of the defendant.

Section 440.10(1)(h) covers constitutional violations in obtaining a judgment, not counsel’s failure to file an appeal after judgment.

People v. Lard · filed 2007-11-09(1)(h)

Section 440.10 (1) (h) addresses violations of constitutional rights in obtaining a judgment, not violations occurring after entry of the judgment (see CPL 1.20 [15]).

Section 440.10(1) permits vacatur of a judgment of conviction only on a specified legal ground, not solely in the interest of justice.

People v. Michael · filed 2007-05-22(1)

Finally, as “a judgment of conviction may only be vacated upon a legal ground specified in CPL 440.10 (1)” (People v Reyati, 254 AD2d 199, 200 [1998]), the court had no authority to grant the relief in the interest of justice (People v Agero, 234 AD2d 94, 95 [1996]).

Section 440.10 permits a motion to vacate a judgment, but a plea of not responsible creates no judgment to vacate.

People v. Francis S. · filed 2005-05-03

Consequently, there is no “judgment” in this case which could properly be the subject of a motion pursuant to CPL 440.10.

A court need not treat a request for DNA testing as a motion under CPL 440.10 when the defendant explicitly disavows reliance on that section.

People v. Burr · filed 2005-04-29

We reject the contention of defendant that County Court should have deemed his motion as one to vacate the judgment of conviction pursuant to CPL 440.10 and 440.30 (1-a). Defendant explicitly and repeatedly disavowed any reliance on those statutes, and the court thus decided the motion independent of their provisions.

A motion to vacate under CPL 440.10 can preserve a challenge to the factual sufficiency of a plea allocution.

People v. Garrett · filed 1992-12-30

In order to preserve a challenge to the factual sufficiency of a plea allocution, a defendant must move to withdraw the plea under CPL 220.60 (3) or vacate the judgment of conviction under CPL 440.10 (People v Lopez, 71 NY2d 662, 665). Defendant did neither.

Section 440.10(1)(h) allows a defendant to challenge a criminal default judgment on due process grounds.

People v. Sage Realty Corp. · filed 1992-10-08(1)(h)

Although defendant has not characterized the instant motion as one to vacate a judgment under CPL 440.10, the court finds that defendant’s due process challenge to the February 11, 1992 default judgment could properly be raised under subdivision (1) (h) of that section (i.e., judgment obtained in violation of a defendant’s constitutional rights).

Section 440.10(1)(h) is the proper basis for a motion to vacate a judgment based on ineffective assistance of counsel.

People v. Vonwerne · filed 1992-08-19(1)(h)

The proper statutory authority for making an ineffectiveness of counsel motion is CPL 440.10 (1) (h).

Section 440.10 is the proper procedure for raising an ineffective-assistance claim to vacate a judgment.

People v. Cuello · filed 1992-12-29

We note that defendant’s claim of ineffective assistance of counsel should have been brought by a motion pursuant to CPL 440.10 to vacate the judgment, not by way of a motion pursuant to CPL 440.20 to set aside the sentence (see, People v Brown, 45 NY2d 852).

Section 440.10 provides a way to develop a reviewable record for a claim of ineffective trial representation.

People v. Brown · filed 1993-02-02

By failing to challenge the purported ineffectiveness of trial representation, pursuant to CPL 440.10, defendant has failed to present a reviewable record on appeal (People v Perez, 159 AD2d 219, lv denied 76 NY2d 740).

Section 440.10(1) permits vacating a judgment only on one of its listed grounds; alleging facts outside the record alone does not establish a ground for relief.

People v. Brown · filed 1992-06-11(1)

Assuming some of the facts alleged by defendant are outside of the record, his claim does not state a basis for relief under any of the grounds listed in CPL 440.10 (1) (see, People v Griffin, 115 AD2d 902, lv denied 67 NY2d 884).

Section 440.10 does not give a trial court jurisdiction to vacate a conviction based on appellate counsel’s delay in perfecting an appeal.

People v. Tannenbaum · filed 1991-05-28

Thus, the Supreme Court lacked the jurisdiction to entertain, much less to grant the defendant’s motion to vacate his judgment of conviction based on counsel’s delay in perfecting the defendant’s appeal.

Section 440.10 provides the proper motion procedure for a claim that counsel was ineffective for failing to seek suppression of identification testimony.

People v. Kranert · filed 1991-10-31

Defendant’s sole claim on appeal is that the failure of his first attorney to move to suppress identification testimony constituted ineffective assistance of counsel. This claim is more properly the subject of a motion pursuant to CPL 440.10 (People v Love, 57 NY2d 998, 1000; People v Bennett, 157 AD2d 630).

CPL 440.10 permits inquiry into trial counsel’s preparation and strategy when an ineffective assistance claim cannot be reviewed on the direct appeal record.

People v. Jiggetts · filed 1991-12-24

However, defendant’s failure to raise this issue by way of a CPL 440.10 motion, which would have permitted inquiry into defense counsel’s preparation and strategy and given him an opportunity to state his specific reasons for not moving for suppression, makes review of defendant’s claim impossible.

Section 440.10(1)(a) permits defendants to seek postjudgment vacatur when the court lacked jurisdiction; it does not authorize the People to set aside a guilty plea.

People v. Moquin · filed 1991-02-19(1)(a)

CPL 440.10 (1) (a) authorizes the court to entertain postjudgment motions by defendants to vacate on the ground that the court lacked jurisdiction, and CPL 440.40 provides for postjudgment motions by the People to set aside legally invalid sentences; however, there is no provision which confers the power to set aside a plea at the People’s behest (see, Matter of Campbell v Pesce, 60 NY2d 165, 168, supra).

Section 440.10(1) permits claims concerning the right to appear before the Grand Jury and related ineffective assistance of counsel to be raised by collateral motion in the court that rendered the judgment of conviction.

People ex rel. Gasper v. Sullivan · filed 1990-08-20(1)

The petitioner’s claim that he was wrongfully deprived of his right to appear and testify before the Grand Jury (see, CPL 190.50 [5]) and his related claim that he was deprived of the effective assistance of counsel during the time the case was presented to the Grand Jury may be raised on a direct appeal from the judgment of conviction, or by collateral motion before the court which rendered the judgment of conviction (cf., People v Jackson, 119 AD2d 587; see also, People v Brown, 45 NY2d 852; CPL 440.10 [1]).

CPL 440.10(1)(h) does not govern a request for resentencing to restart the appeal period when counsel allegedly failed to file a notice of appeal and the defendant makes no claim or showing of prejudice; CPL 460.30 governs that request.

People v. Dumas · filed 1990-04-02(1)(h)

Although the motion was denominated as one pursuant to CPL 440.10, the defendant made no claim or showing of prejudice because of the breach ... and his motion is in fact a Montgomery application ... governed by CPL 460.30 (see, People v Corso, supra).

Section 440.10 treats a motion to withdraw a guilty plea made long after sentencing as a motion to set aside the conviction.

People v. Poler · filed 1989-10-06

Defendant’s motion to withdraw his guilty ... plea, made long after sentencing, must be considered as a motion to set aside the conviction pursuant to CPL 440.10 and it is not appealable as of right.

CPL 440.10 is not the procedure for an ineffective assistance of appellate counsel claim; that claim must be brought by coram nobis in the proper appellate court.

People v. Settembre · filed 1989-07-17

Appeal by the defendant from an order of the County Court, Putnam County (Hickman, J.), dated December 31, 1986, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered March 20, 1985. Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the defendant’s motion which was to set aside the judgment of conviction on the ground of ineffective assistance of appellate counsel and substituting therefor a provision deeming that branch of the motion to be an application for a writ of error coram nobis and transferring that branch of the motion to this court for determination; as so modified, the order is affirmed.

Section 440.10 provides a motion to vacate a judgment that covers challenges to a conviction formerly raised through habeas corpus or coram nobis.

People ex rel. Anderson v. Warden of New York City Correctional Institution for Men · filed 1971-10-29

The new motions to vacate judgment (CPL 440.10) and to set aside sentence (CPL 440.20) are intended to “ embrace” all previous collateral attacks on convictions and sentences, including both habeas corpus and coram nobis (Commission Staff Comment to art. 440), and cover all contentions which may be raised under the old remedies to collaterally attack a conviction or .sentence (Commission iStaff Comment to CPL 440.10 Accord, 1970 Comments to art. 710).

Section 440.10 permits a collateral attack on a conviction based on trial errors, but not on alleged errors by appellate counsel.

United States of America Ex Rel. Larry Johnson v. Leon J. Vincent, Superintendent of Green Haven Correctional Facility, Stormville, New York · filed 1975-03-24

The only point in the state proceedings where Johnson raised the claim of ineffective assistance of counsel was in his second motion to vacate the judgment of conviction, pursuant to N.Y. Crim.Proc.Law § 440.10 (McKinney 1971). This provision, however, permits collateral attack on a conviction only on the basis of errors committed at trial, as reflected in Justice Fein’s decision denying Johnson’s motion: “If appellate counsel’s alleged oversight is intended as a claim of inadequate representation, such conduct occurred at the appellate level and not during the course of the proceedings in the nisi prius court. It does not appear that the trial court erred.”

Section 440.10 governs postjudgment motions; a motion to set aside a verdict before sentencing falls under CPL 330.30.

People v. Hazelton · filed 1977-07-28

Although the Trial Judge treated the defendant’s motion as a postjudgment motion (CPL 440.10), the motion was actually one to set aside the verdict (CPL 330.30, subd 3).

Section 440.10 provides a forum to seek relief from an unconstitutional prior conviction before obtaining a firearm.

People v. Cornish · filed 1980-04-23

New York CPL 440.10 provides defendant with a forum, before obtaining a firearm, under which he may obtain relief from a prior unconstitutionally obtained conviction.

Section 440.10 does not provide a motion to vacate a judgment so a prisoner can interrupt a sentence to attend a funeral.

People v. Lewis · filed 1982-08-27

CPL article 440 sets forth a number of instances when such a modification can be made. ... But this is not the situation I have before me. Therefore, a motion to vacate under this section would be inapplicable.

Section 440.10(1)(a) permits a court to vacate a judgment only on the defendant’s motion.

Campbell v. Pesce · filed 1983-11-03(1)(a)

CPL 440.10 (subd 1, par [a]) permits the court to vacate a judgment only upon motion of the defendant.

Section 440.10 permits a collateral attack on errors committed at trial, not on appeal.

Bullock v. Warden, Auburn Correctional Facility · filed 1983-12-01

The Court agrees. Section 440.10 provides a mechanism by which a conviction can be collaterally attacked on the basis of errors committed at trial, not on appeal.

Section 440.10 provides the forum for a defendant to challenge the constitutionality of a predicate misdemeanor conviction.

People v. De Jesus · filed 1983-12-15

Since the defendant is bound to pursue his claims by way of writ of error coram nobis he must, when he is willing and able, bring his arguments to the forum provided by CPL 440.10, the section by which the writ is now codified.

Section 440.10(1)(a) permits vacatur of a judgment based on an indictment count that states no crime, even after a guilty plea.

People v. Salvato · filed 1984-04-18(1)(a)

This motion by defendant seeking an order of this court vacating the previously entered judgment against the defendant is considered pursuant to CPL 440.10 (subd 1, par [a]) and 440.30 and is determined as follows: ... Here, the objection to the indictment is not waived by the plea of guilty since the count of the indictment upon which the plea was predicated does not state a crime. Therefore the previously entered judgment must be vacated and the first three counts of the indictment which allege the offense of grand larceny in the second degree must be dismissed.

Section 440.10 requires an application to vacate a judgment to be brought in the court that entered it.

People v. Crescenzo · filed 1984-06-04(1)

This application can only be brought in the court in which the judgment was entered (CPL 440.10, subd 1; 440.20).

Section 440.10(1) permits a motion to vacate a judgment only after sentencing has completed the judgment; a motion made before resentencing is premature.

People v. Burdash · filed 1984-06-21(1)

Thus, prior to the imposition of sentence, there is no judgment which can be vacated and a motion under CPL 440.10 at that time is premature and should not be considered (see People v Padgett, 32 AD2d 672, affd 27 NY2d 841; People v Marino, 51 Mise 2d 238, 239).

Section 440.10 requires a motion to vacate a judgment to rest on one of its eight specified grounds; an allegedly insufficient plea allocution is not one of them.

People v. Cooks · filed 1985-09-12(1)

A court does not have unlimited jurisdiction to entertain motions pursuant to CPL 440.10. The motion must be made upon one or more of the eight grounds set forth in the section (CPL 440.10 [1]). By defendant’s own statement, the only basis for the motion was the alleged insufficiency of the allocution to sustain the plea. Such ground is not one of those established by the statute.

Section 440.10 governs motions to vacate a judgment; a motion to vacate a sentence is governed by CPL 440.20.

People v. Crawford · filed 1986-09-26

We note that Supreme Court erred in characterizing defendant’s CPL 440.20 motion as one to vacate judgment under CPL 440.10 and, accordingly, applied an incorrect standard in determining the motion.

After sentencing, a defendant seeking to withdraw a guilty plea must move to vacate the judgment under CPL 440.10; an oral request to withdraw the plea is insufficient.

People v. Mohammed · filed 1985-11-18

Defendant failed to either move to withdraw the plea prior to the imposition of sentence in the court of first instance, or to move to vacate the judgment pursuant to CPL 440.10. His oral attempt to withdraw his plea after sentence was properly rejected by Criminal Term (see, People v Miller, 90 AD2d 799).

Section 440.10(1)(f) requires a showing that alleged juror misconduct was prejudicial.

People v. Astle · filed 1986-06-05(1)(f)

Moreover, even if there had been any evidentiary facts supporting defendant’s contentions, defendant has utterly failed to show that the alleged misconduct was prejudicial (see, CPL 440.10 [1] [f]) or resulted in a denial of his constitutional right to a fair and impartial jury (see, CPL 440.10 [1] [h]).

Section 440.10 permits a defendant to pursue an ineffective assistance of counsel claim concerning a speedy trial issue.

People v. Burress · filed 1986-07-11

Defendant’s pro se argument that he was denied the effective assistance of counsel on this speedy trial claim may be pursued under CPL 440.10 (see, People v Brown, 45 NY2d 852, 853-854).

Section 440.10(1)(a) permits a motion to vacate a judgment for lack of jurisdiction, but the availability of that motion does not preclude a traditional state habeas corpus petition in the county of incarceration.

People ex rel. Culhane v. Sullivan · filed 1986-08-20(1)(a)

The court finds initially that the writ of habeas corpus is properly brought in the County of Westchester under CPLR 7002 (b) inasmuch as petitioner is incarcerated in the Sing Sing Correctional Facility located in this county and the Ninth Judicial District and further that, contrary to the argument of respondents, such writ need not be converted to a CPL article 440 proceeding for which the proper forum would be Ulster County, inasmuch as the availability of a CPL 440.10 (1) (a) motion to vacate petitioner’s judgment of conviction on grounds that the court did not have jurisdiction of the action "does not preclude a defendant with a traditional state habeas corpus continuation from seeking a writ at a Supreme Court term of the county of incarceration instead of advancing it upon the proposed motion” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 440.10, p 320; accord, People ex rel. Brady v Scully, 111 AD2d 419 [2d Dept 1985]).

Section 440.10 does not generally require a defendant to file a motion before raising ineffective assistance of counsel on direct appeal.

Journet v. Coombe · filed 1986-10-17

New York procedural law contains no general requirement that a defendant arguing ineffective assistance of counsel must first make a CPL § 440.10 motion in order to provide the trial court with the opportunity to grant an evidentiary hearing to call up facts unknown at the time of judgment.

Section 440.10 cannot be used to challenge the sufficiency of a plea allocution when the record permits review on direct appeal.

People v. Torres · filed 1986-12-18

As a procedural matter, the defendant improperly moved to challenge his 1975 felony judgment of conviction by relying on CPL 440.10.

Section 440.10 is not the proper procedure for a claim of ineffective assistance of appellate counsel; the claim belongs in a coram nobis application to the appellate court.

People v. Kinard · filed 1987-05-22

Coram nobis (literally translated "our court”) by its very essence is a procedure brought in the court wherein the error is alleged to have occurred. Therefore, defendant’s initial CPL 440.10 application to the criminal court was properly denied as this court is the proper forum to address this issue.

Section 440.10(1)(h) does not allow a motion to vacate a judgment based on ineffective assistance of appellate counsel.

People v. Bachert · filed 1987-06-04(1)(h)

A motion to vacate judgment under CPL 440.10 (1) (h) does not include the claim of ineffective assistance of appellate counsel and to force the fit would constitute legislation by judicial fiat.

Section 440.10 permits a trial court to hear an ineffective assistance of trial counsel claim, but an ineffective assistance of appellate counsel claim must be raised in another forum.

People v. Alexander · filed 1987-06-19

A CPL 440.10 motion is procedurally the appropriate vehicle to raise in this court a claim of ineffective assistance of trial counsel (see, People v Bachert, 69 NY2d 593) but may no longer be used to raise a claim of ineffective assistance of ...appellate counsel (see, People v Bachert, supra, revg 121 AD2d 802).

Section 440.10 generally provides a motion in the trial court to raise ineffective assistance of trial counsel when the claim requires facts outside the trial record.

Walker v. Dalsheim · filed 1987-08-17

The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10.

A claim of ineffective assistance of appellate counsel must be raised through a writ of error coram nobis in the appellate court, rather than a CPL 440.10 motion.

People v. Byrne · filed 1987-09-10

The recent decision of the Court of Appeals in People v Bachert (69 NY2d 593, revg 121 AD2d 802) held that a CPL 440.10 motion is an inappropriate method for raising a claim of ineffective assistance of appellate counsel and that the proper vehicle to raise such a claim is a motion for a writ of error coram nobis made directly to the appellate court in which the appeal was heard. As a result, we treat defendant’s current pro se CPL 440.10 motion as a motion for such coram nobis relief and consider it on the merits (see, People v Bachert, 133 AD2d 482 [decided herewith]).

CPL 440.10 permits a defendant to seek vacatur of a prior conviction after sentencing based on matters outside the record, including an involuntary plea or ineffective assistance of counsel.

People v. Knack · filed 1987-06-01

Furthermore, he may move pursuant to CPL 440.10, to vacate the prior judgment of conviction after sentence at which time he may contest matters not appearing on the record, including his inability to have voluntarily entered the plea and ineffective assistance of counsel.

A motion to vacate judgment under § 440.10(1)(g) is premature if made before sentencing.

People v. Ketchmore · filed 1987-07-30(1)(g)

Defendant’s motion to vacate the judgment pursuant to CPL 440.10 (1) (g), made prior to sentencing, was premature (see, People v Burdash, 102 AD2d 948, 949).

Section 440.10(1)(b) and (g) may apply to a vacated conviction even when the vacating court did not specify its grounds.

Carter v. State · filed 1988-03-30(1)(b), (1)(g)

The Supreme Court did not specify the grounds for vacatur of claimant’s conviction, but clearly paragraphs (b) and (g) of CPL 440.10 (1) applied.

Section 440.10 provides for vacating a judgment but does not provide relief when the Appellate Division has not decided an appeal.

Mathis v. David Hood, Superintendent, Otisville Correctional Facility · filed 1988-07-14

Clearly, § 440.10 affords petitioner no relief since it is from the lack of any disposition in the Appellate Division that he seeks relief.

Section 440.10(1)(a) does not require vacatur for a nonjurisdictional defect in a Grand Jury proceeding.

People v. Haggins · filed 1989-03-10(1)(a)

Since the defect in the Grand Jury proceeding was not jurisdictional (see, CPL 440.10 [1] [a]; People v Iannone, 45 NY2d 589, 600), the court was not required to grant defendant’s motion to vacate the judgment.

CPL 440.10 requires a hearing when sworn allegations in a motion to vacate raise a triable issue of fact about counsel’s effectiveness.

People v. Mattison · filed 1992-04-09

Those allegations raise a triable issue of fact regarding the effectiveness of defendant’s attorney (see, People v Welch, 108 AD2d 1020) and a hearing was thereby required to determine the validity of the allegations (see, People v Cramer, 133 AD2d 880, lv denied 70 NY2d 1005).

Section 440.10 cannot be used to vacate a judgment before sentencing, because no judgment has yet been entered.

People v. Marzed · filed 1993-05-04

This is not properly a motion to vacate judgment pursuant to CPL 440.10 (1) (b), (h) because the defendant has not yet been sentenced and, therefore, no judgment has been entered.

Section 440.10 does not govern a motion to modify a verdict before sentencing; the motion must be considered under CPL 330.30.

People v. Quinones · filed 1994-07-08

The defendant refers to this as a CPL 440.10 motion. As the People point out, since the defendant has not been sentenced yet, the motion must be considered as a CPL 330.30 motion.

Section 440.10 provides a motion to raise allegations that a conviction rests on possible perjured police testimony.

People v. Toledo · filed 1994-09-08

Defendant’s recent allegations to the effect that his conviction rests upon possible perjured testimony of police officers of the 30th precinct would be more appropriately presented in a motion pursuant to CPL 440.10.

Section 440.10 does not authorize vacating a conviction on equitable grounds because a later change in federal law prevents the defendant from seeking a waiver of deportability.

People v. Agero · filed 1996-12-10

Nor is there any authority in New York to grant such relief on equitable grounds (CPL 440.10).

CPL 440.10 provides a motion to challenge the voluntariness of a guilty plea after sentencing.

People v. Latham · filed 1997-12-17

The voluntariness of a plea is challenged prior to sentencing by a motion to withdraw the plea under CPL 220.60, or after sentencing by a motion to set aside the plea under CPL 440.10.

After sentencing, a judgment of conviction may be vacated only on a legal ground specified in section 440.10(1).

People v. Reyati · filed 1998-10-27(1)

Subsequent to sentencing, a plea may not be withdrawn, and a judgment of conviction may only be vacated upon a legal ground specified in CPL 440.10 (1).

Section 440.10(1)(a) and (h) permit vacatur of a default conviction for a facially insufficient summons and a meritorious defense.

People v. Hoffman Floor Covering Corp. · filed 1999-01-26(1)(a), (1)(h)

The conviction is vacated pursuant to CPL 440.10 (1) (a) (for facial insufficiency) and (h) (upon defendant’s meritorious defense).

Section 440.10(1)(f) permits vacating a conviction for prejudicial trial misconduct absent from the record if that misconduct would have required reversal on direct appeal.

People v. Ulrich · filed 1999-10-01(1)(f)

CPL 440.10 (1) (f) authorizes the hearing court to vacate a judgment of conviction upon proof that “[improper and prejudicial conduct not appearing in the record occurred” during the trial, “which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom”.

Section 440.10(1)(b)'s duress ground does not cover requiring a defendant who has had ample time to consider his options to choose between trial and an offered guilty plea.

Britt v. State · filed 1999-11-16(1)(b)

In any event, a court does not apply duress by requiring that a defendant elect between proceeding to trial and entering a plea of guilty to whatever reduced charge (and concomitant sentence) is offered by the People, especially when the defendant has been afforded ample opportunity to consider his alternatives. ... First, he has not established coercion on the part of the court (Court of Claims Act § 8-b [3] [b] [ii]; CPL 440.10 [1] [b]).

Section 440.10 is not the proper basis for a motion to vacate a conviction before sentencing; such a motion should be made under CPL 330.30.

People v. Fells · filed 2001-01-11

Defendant’s motion, titled a “Motion Pursuant to CPL 440.10,” was made prior to sentencing and should have been made pursuant to CPL 330.30.

Section 440.10(1)(a)–(c) permits a postconviction motion challenging a judgment of conviction on grounds of lack of jurisdiction, fraud, or misconduct.

People ex rel. Brown v. People · filed 2002-06-27(1)(a)–(c)

Accordingly, petitioner currently has no 13th Amendment claim and his underlying claims of lack of jurisdiction, fraud and misconduct represent direct attacks on the validity of the judgment of conviction which could have been raised on petitioner’s appeal from that judgment or by way of a postconviction motion (see, CPL 440.10 [1] [a], [b], [c]).

Section 440.10 permits a defendant to raise a CPL 310.30 issue in a motion to vacate the judgment of conviction.

People v. Brown · filed 2002-10-01

Defendant may raise the CPL 310.30 issue in a motion to vacate the judgment of conviction (see CPL 440.10).

A court may convert a CPL 330.30 motion to a CPL 440.10 motion when the papers were not filed before sentencing and conversion avoids delay while allowing the prosecution to respond.

People v. Toland · filed 2003-12-18

Since defendant’s CPL 330.30 motion papers had not been filed with County Court prior to the imposition of sentence, County Court was justified in converting the motion to one under CPL 440.10 to avoid delay in the imposition of sentence, to control its calendar, and to grant the People an adequate opportunity to respond.

A contention not raised in a CPL 440.10 motion is not properly before the appellate court on appeal from that motion.

JOHNSON, CORNELIUS, PEOPLE v · filed 2014-07-11

Defendant’s further contention that his plea was not voluntary, ... knowing, and intelligent because neither defense counsel nor County Court (Rogowski, J.) advised him that he could be deported based upon his conviction is not properly before us because defendant failed to raise that contention in his CPL 440.10 motion (see People v Pennington, 107 AD3d 1602, 1604, lv denied 22 NY3d 958).

Section 440.10 provides relief for certain fundamental errors outside the record when no other judicial remedy is available; it cannot substitute for a direct appeal.

The People v. Victor Thomas , The People v. Nicole L. Green , The People v. Storm U. Lang · filed 2019-11-26

In stark contrast, CPL 440.10 relief, which codified the writ of error coram nobis, cannot be used as a substitute for a direct appeal (see People v Howard, 12 NY2d 65, 66-67 [1962]). Instead, it is designed as a remedy against injustice when no other avenue of judicial relief is available for certain nonwaivable rights impacted by fundamental errors dehors the record (see People v Cuadrado, 9 NY3d 362, 365 [2007]).

CPL 440.10 does not permit a motion to vacate a judgment based on a claim that the sentence is harsh and excessive.

People v. Sloley · filed 2020-01-16

Such claim, however, is not a proper subject of a CPL 440.10 motion ( see People v Currier , 137 AD3d 1428, 1429 [2016], lv denied 27 NY3d 1131 [2016]).

CPL 440.10 governs motions to vacate a judgment of conviction and does not govern a motion brought solely to set aside a sentence.

People v. Hall · filed 2020-11-19(1)

Initially, we agree with defendant that Supreme Court erred in relying on CPL 440.10 to deny this motion inasmuch as defendant did not move pursuant to CPL 440.10 to vacate the judgment of conviction ( compare CPL 440.10 [1], with CPL 440.20 [4]; see CPL 1.20 [13], [14], [15]).

Section 440.10(2)(b)'s procedural bar applies only to motions under section 440.10, not motions to set aside a sentence under section 440.20.

People v. Bell-Bradley · filed 2021-02-05(2)(b)

The procedural bar set forth in CPL 440.10 (2) (b) applies only to motions made pursuant to section 440.10, and defendant's motion was made pursuant to section 440.20 ( see People v McCants , 15 AD3d 892, 893 [4th Dept 2005]).

Section 440.10 (1) permits vacatur of a judgment only on one of its enumerated grounds.

People v. Martinez (Nicholas) · filed 2023-03-30(1)

A motion to vacate a judgment can only be granted upon one of the specific grounds enumerated in CPL 440.10 (1). Here, defendant failed to provide a valid statutory basis for seeking vacatur of the two SCTPVA judgments.

Section 440.10 motions address facts outside the trial record and cannot serve as an additional appeal.

People v. Cole · filed 2023-06-22

"The purpose of a CPL article 440 motion is to inform a court of facts not reflected in the record and unknown at the time of the judgment. By its very nature, the procedure cannot be used as a vehicle for an additional appeal"

Section 440.10 provides a motion to vacate the judgment as the proper way to seek review of an ineffective-assistance claim arising from plea negotiations when the claim is not reviewable on appeal from a resentence.

People v. Lewis · filed 2024-11-15

The proper procedural vehicle to review defendant's contention is a motion to vacate the judgment of conviction pursuant to CPL 440.10 ( see generally People v McNair , 294 AD2d 952, 952 [4th Dept 2002], lv denied 98 NY2d 699 [2002]).

Section 440.10(2)(b) does not require an evidentiary hearing when the existing record permits review of the claim on direct appeal.

Erdheim v. Greiner · filed 1998-10-28(2)(b)

The coram nobis judge concluded the issue was more appropriate for direct appeal than for a Section 440.10 hearing because there were sufficient facts in the record. ... In the circumstances, the judge was not required to conduct an evidentiary hearing.

Section 440.10 requires a hearing only when the motion presents material facts outside the record that would entitle the defendant to relief.

People v. Scott · filed 2026-06-18

On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief.

A court may deny a CPL 440.10 motion without a hearing when its allegations lack sworn factual support or are contradicted by the record.

People v. Sanabria · filed 2026-05-13

The court properly rejected those contentions without a hearing because they were "all self-serving, not substantiated by sworn facts, and/or contradicted by the record" (see People v Ozuna, 7 NY3d 913, 915).

A hearing on a CPL 440.10 motion requires a showing that the nonrecord facts sought to be established are material and would entitle the defendant to relief.

People v. Dennis · filed 2026-03-27

Defendant failed to establish entitlement to a hearing on his CPL 440.10 motion inasmuch as he failed to demonstrate that "the nonrecord facts sought to be established are material and would entitle him . . . to relief" ( People v Streeter , 194 AD3d 1407, 1408 [4th Dept 2021], lv denied 37 NY3d 974 [2021], reconsideration denied 37 NY3d 1029 [2021] [internal quotation marks omitted]; see People v Kellum , 233 AD3d 1374, 1379 [3d Dept 2024], lv denied 44 NY3d 983 [2025]).

A hearing on a CPL 440.10 motion is required when material facts outside the record, if established, would entitle the defendant to relief.

People v. Kadar · filed 2025-12-31

"Although a hearing on a CPL 440.10 motion is not always necessary, a hearing is required where the defendant bases the motion upon nonrecord facts that are material and, if established, would entitle the defendant to relief" ( People v Monteiro , 149 AD3d 1155, 1156 [3d Dept 2017] [citations omitted]; accord People v Byrd , 174 AD3d 1133, 1134 [3d Dept 2019], lv denied 34 NY3d 979 [2019]). ... To the extent defendant raises additional ineffective assistance of counsel claims that were the subject of his CPL article 440 motion, we have considered his arguments and conclude that County Court properly denied his motion without conducting a hearing.

Section 440.10 permits a court to assess the credibility of hearing testimony when deciding a motion to vacate a judgment.

People v. Ross · filed 2025-04-25

There is no authority supporting defendant's contention that a court entertaining a CPL 440.10 motion must assume the truth of all hearing testimony and leave credibility determinations for the jury to make at a retrial.

A court may deny a CPL 440.10 motion to vacate without a hearing in its discretion.

People v. Salas · filed 2023-10-19

The court providently exercised its discretion in denying defendant's CPL 440.10 motion without granting a hearing ( see People v Delorbe , 35 NY3d 112, 121 [2020]).

A CPL 440.10 motion may be denied without a hearing when unsupported allegations fail to show ineffective assistance of counsel.

People v. Kuhn · filed 2023-11-16

In light of the foregoing, we find that defendant's unsupported allegations do not demonstrate less than meaningful representation, and we find no error in the denial of his CPL 440.10 motion without a hearing ( see People v Podeswa , 205 AD3d at 1141-1142; People v Oddy , 144 AD3d 1322, 1324 [3d Dept 2016], lv denied 29 NY3d 1131 [2017]; People v Brown , 23 AD3d 702, 703 [3d Dept 2005], lv denied 6 NY3d 774 [2006]).

A hearing on a CPL 440.10 motion is required only when the submissions show that the nonrecord facts are material and would entitle the defendant to relief.

People v. Gassner · filed 2021-04-08

With respect to defendant's ineffective assistance of counsel claim, which is premised upon both record and nonrecord facts ( see CPL 440.10 [1] [h]), we are not persuaded that County Court erred in denying defendant's CPL 440.10 motion to vacate the judgment of conviction without a hearing.

A CPL 440.10 motion requires a hearing only if the nonrecord facts sought to be established are material and would entitle the defendant to relief.

People v. Marte-Feliz · filed 2021-03-25

On a motion to vacate a judgment of conviction under CPL 440.10, "a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v Vargas , 173 AD3d 1466, 1468 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d 955 [2019]; see People v Stanley , 189 AD3d 1818, 1819 [2020]).

A defendant is not entitled to a hearing on a section 440.10 motion when the ineffective-assistance challenges were already raised and rejected on direct appeal.

BARKSDALE, JOVAN L., PEOPLE v · filed 2016-06-17

We reject that contention inasmuch as defendant’s challenges to his attorney’s performance were already raised on direct appeal and rejected by this Court (People v Barksdale, 129 AD3d 1497, 1498, lv denied 26 NY3d 926, reconsideration denied 26 NY3d 1007). Defendant was therefore not entitled to a hearing (see People v Chelley, 137 AD3d 1720, 1720-1721).

Section 440.10 permits a court to deny a motion to vacate without a hearing when the supporting affidavit is inconsistent with the trial record, self-contradictory, uncorroborated, and otherwise without merit.

People v. Baker · filed 2016-05-26

With regard to defendant’s claim of ineffective assistance in the plea bargaining process, the court properly exercised its discretion in denying defendant’s CPL 440.10 motion without holding a hearing (see People v Samandarov, 13 NY3d 433, 439-440 [2009]; People v Satterfield, 66 NY2d 796, 799-800 [1985]). Defendant’s affidavit was inconsistent with the trial record, self-contradictory, uncorroborated by any other evidence, and otherwise without merit.

Section 440.10 permits denial of a motion to vacate judgment without a hearing when the record resolves the claim and the proffered nonrecord facts would not entitle the defendant to relief.

107166 People v. Decker · filed 2016-05-05

Defendant's claim that Montgomery County Court erred in summarily denying his CPL 440.10 motion – which was premised on the same allegations of coercion lodged in his motions to vacate his guilty pleas – is similarly unavailing. No hearing was required inasmuch as defendant's arguments could properly be resolved based upon the contents of the record, and the proffered affidavits failed to demonstrate that "the nonrecord facts sought to be established are material and would entitle him to relief" (People v Satterfield, 66 NY2d 796, 799 [1985]; see People v Rebelo, 137 AD3d 1315, 1317 [2016]; People v Griffin, 89 AD3d 1235, 1237-1238 [2011]).

A CPL 440.10 motion may be denied without a hearing when the defendant’s claims lack factual support.

People v. Ryder · filed 2016-02-11

As defendant’s contentions are not factually supported, Supreme Court properly denied the motion without a hearing (see People v LaPierre, 108 AD3d 945, 947 [2013]; People v Sayles, 17 AD3d 924, 924-925 [2005], lv denied 5 NY3d 794 [2005]).

A CPL 440.10 motion may be denied without a hearing when the claims can be resolved from the record on direct appeal.

People v. Rebelo · filed 2016-03-03

Finally, we find that defendant's claims are capable of being resolved by reference to the record on direct appeal and, thus, County Court did not err in denying defendant's CPL 440.10 motion without a hearing (see People v Satterfield, 66 NY2d 796, 799 [1985]; People v LaPierre, 108 AD3d 945, 946 [2013]).

A CPL 440.10 motion may be denied without a hearing when the plea record contradicts the defendant's supporting allegation that counsel misadvised him about deportation.

People v. Tamah · filed 2015-11-05

Under these circumstances, County Court properly denied defendant's CPL 440.10 motion without a hearing (see People v Bassi, 111 AD3d ...845, 846 [2013]; People v Achouatte, 91 AD3d 1028, 1029 [2012], lv denied 18 NY3d 954 [2012], cert denied ___ US ___, 133 S Ct 216 [2012]).

Section 440.10 warrants an evidentiary hearing when material facts outside the record, if proven, would entitle the defendant to vacatur.

People v. Morales · filed 2015-08-28

On a CPL 440.10 motion, “a hearing is required where facts outside the record are material and would entitle a defendant to relief” (People v Hennessey, 111 AD3d 1166, 1168 [3d Dept 2013]). As concluded below, the court finds that such facts have been amply proffered by defendant on this motion, by his sworn affidavit, and by his attorney’s affirmation, and by the record in the underlying case, warranting an evidentiary hearing on the material question whether his prior counsel misadvised him as to immigration consequences, or not.

A CPL 440.10 motion warrants an evidentiary hearing when the defendant raises sufficient factual questions about counsel’s effectiveness.

People v. Hemans · filed 2015-10-06

Defendant raised sufficient questions of fact concerning the effectiveness of counsel’s assistance to warrant a hearing (see People v Chacko, 99 AD3d 527 [1st Dept 2012], lv denied 20 NY3d 1060 [2013]).

A defendant who sufficiently alleges that counsel misadvised her about the deportation consequences of a guilty plea and that she was prejudiced is entitled to a hearing on her CPL 440.10 motion.

People v. Ricketts-Simpson · filed 2015-07-09

As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from her guilty plea and that she was prejudiced as a result thereof, she was entitled to a hearing ... on this aspect of her CPL 440.10 motion (see People v Diallo, 113 AD3d at 202; People v Reynoso, 88 AD3d 1162, 1163-1164 [2011]; People v Williams, 72 AD3d 1347, 1348 [2010]; People v Marshall, 66 AD3d 1115, 1116 [2009]; see also People v Martial, 125 AD3d 689, 690 [2015]).

Section 440.10 permits summary denial of a motion to vacate a judgment when no factual dispute warrants a hearing.

People v. Lewis · filed 2015-06-30

The court’s summary denial of the motion (45 Misc 3d 396 [Sup Ct, Bronx County 2014]) was proper, because there was no factual dispute that was sufficient to warrant a hearing.

A hearing on a motion to vacate a judgment is unnecessary when the claimed ineffective assistance can be decided from the trial record and the motion submissions.

People v. Manchester · filed 2014-12-18

A hearing is not required on a CPL article 440 motion when the merits of the claimed ineffectiveness can "be determined on the trial record and defendant's submissions on the motion" (People v Satterfield, 66 NY2d 796, 799 [1985]; see People v Robetoy, 48 AD3d 881, 883 [2008]).

A CPL 440.10 motion warrants a hearing when a codefendant offers a potentially innocent explanation for incriminating evidence and swears that a plea condition deters further testimony.

People v. Hall · filed 2015-02-19

Under the narrow circumstances here, in which no codefendant implicated defendant, a codefendant purported to provide an innocent explanation for one piece of evidence implicating defendant, that same codefendant stated under oath that he believed he was constrained by his plea (and still under threat of a much longer prison sentence) from providing any further information, and that codefendant's subjective belief was not wholly unfounded in light of statements by County Court and the People at the time of his plea, we are persuaded that defendant should receive a hearing on his motion (see People v Dixon, 93 AD3d at 896 n 2).

A motion under CPL 440.10 does not require a hearing when the motion submissions and the record resolve it.

People v. Lapierre · filed 2013-07-18

However, no hearing is required when a motion pursuant to CPL 440.10 can be resolved based upon the motion submissions and the record (see People v Jackson, 48 AD3d 891, 893 [2008], lv denied 10 NY3d 841 [2008]; People v Murray, 300 AD2d 819, 821 [2002], lv denied 99 NY2d 617 [2003]).

A CPL 440.10 motion may warrant a hearing despite motion counsel’s failure to make a formal written request for an affirmation from plea counsel.

People v. Ramos · filed 2012-11-15

Under all these circumstances, motion counsel’s failure to make a formal written request for an affirmation did not warrant denial of a hearing.

Section 440.10 motions do not always require a hearing; the trial court may deny one when the submissions and trial record suffice to decide the claim.

People v. Snyder · filed 2012-01-26

Defendant’s CPL 440.10 motion to vacate the judgment of conviction on the ground of ineffective assistance of counsel was properly denied without a hearing. A postjudgment motion brought pursuant to this statute will not necessitate a hearing in every instance, and it is the trial court’s prerogative to make the preliminary determination of whether such a hearing is necessary (see CPL 440.30 [1], [4] [a]; People v Satterfield, 66 NY2d 796, 799 [1985]).

CPL 440.10 permits a defendant to raise an ineffective-assistance claim based on counsel’s alleged misinformation about the sentence faced after rejecting a plea offer, and a hearing is warranted when the defendant alleges facts that, if true, would support the claim.

People v. Alomar · filed 2011-11-29

In support of his claim, which is of a type properly raised within the context of a motion pursuant to CPL 440.10, the defendant submitted an affidavit alleging certain facts, which, if true, would be sufficient to prevail on that claim (see People v Mobley, 59 AD3d 741 [2009]; see generally People v Rogers, 8 AD3d 888, 890-891 [2004]). Under the circumstances of this case, a hearing was warranted (see People v Mobley, 59 AD3d at 741).

A court should hold a hearing on a CPL 440.10 motion based on a witness’s recantation when the circumstances do not justify rejecting the recantation as incredible without one.

People v. Jenkins · filed 2011-05-31

Under these circumstances, the Supreme Court’s denial, without a hearing, of that branch of the defendant’s CPL 440.10 motion which was based upon Napoleon’s recantation was an improvident exercise of discretion.

Section 440.10 entitles a defendant to a hearing when adequately raised factual issues cannot be resolved on the motion papers.

State v. Deyo · filed 2011-03-31

Turning to defendant’s CPL 440.10 motion, we find that he was entitled to a hearing to address certain of his allegations.

A CPL 440.10 motion warrants a hearing when a material factual dispute about counsel’s knowledge and disclosure of potentially exculpatory evidence remains unresolved.

CAMPBELL, SHAWN, PEOPLE v · filed 2011-02-10

We thus conclude that the court erred in failing to conduct a hearing ... inasmuch as defendant raised an issue of fact whether defendant’s trial counsel was aware of the potentially exculpatory evidence and whether he advised defendant about that evidence (cf. People v Waymon, 65 AD3d 708, 709, lv denied 13 NY3d 857, 863).

A section 440.10 motion may be denied without a hearing when its allegations are speculative and the trial record sufficiently addresses them.

People v. Battease · filed 2010-06-17

Defendant further urges that County Court erred in denying his CPL article 440 motion without a hearing. ... The motion was supported by only his affidavit. The record reveals the total lack of merit of his speculative contentions regarding the prosecutor. ... The record was sufficiently developed as to this issue and County Court rendered a thorough written decision addressing defendant’s various contentions.

A CPL 440.10 motion does not require a hearing when its grounds are conclusory and unsupported by factual allegations.

People v. Provencher · filed 2010-04-01

Defendant also contends that his pro se CPL article 440 motion made in October 2008 should not have been denied without a hearing. Most of the many grounds set forth in defendant’s motion are comprised of a conclusory listing of purported errors that are unsupported by factual allegations in his affidavit and, accordingly, no hearing was necessary (see People v Woodard, 23 AD3d 771, 772 [2005], lv denied 6 NY3d 782 [2006]).

A CPL 440.10 motion requires a hearing when the defendant’s allegations raise a sufficient factual issue.

People v. Hampton · filed 2009-07-09

Upon these facts, we are persuaded that defendant has raised an issue sufficient to require a hearing on his CPL 440.10 motion (see People v Reynolds, 309 AD2d 976, 976-977 [2003]; People v Thomson, 279 AD2d 644, 645 [2001]; People v Perron, 273 AD2d 549, 550 [2000]; People v Mattison, 182 AD2d 917, 919 [1992], Iv denied 80 NY2d 896 [1992]).

A CPL 440.10 motion requires a hearing when a defendant alleges that counsel’s mistaken deportation advice caused him to plead guilty.

People v. Marshall · filed 2009-10-22

Given defendant’s insistence that he would not have pleaded guilty but for his reliance on this alleged misstatement by counsel of applicable federal law, County Court should have held a hearing prior to deciding defendant’s CPL 440.10 motion (compare People v McDonald, 1 NY3d at 115).

Section 440.10 requires a hearing when a motion presents sworn allegations of juror misconduct that may have prejudiced a substantial right.

People v. Mosley · filed 2008-11-14

Defendant contends that County Court erred in denying the motion without conducting a hearing on two issues raised in his motion papers, i.e., juror misconduct and ineffective assistance of counsel. We agree.

A court need not hold a hearing on a CPL 440.10 motion when the motion papers and underlying record are sufficient to decide it.

People v. Hyson · filed 2008-11-13

As to defendant’s claim that County Court should have conducted a hearing on his CPL article 440 motion, no such hearing was required since “the material submitted in support of the motion, as well as the record of the underlying proceeding, [were] sufficient for the court to decide [it]” (People v Robetoy, 48 AD3d 881, 883 [2008]; see People v Ellis, 53 AD3d 776, 777 [2008]).

A court may exercise its discretion to deny a CPL 440.10 motion without a hearing.

People v. Hill · filed 2008-09-18

The court properly exercised its discretion in denying defendant’s CPL 440.10 motion without a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).

A CPL 440.10 motion claiming incompetence at the time of a plea may be denied without a hearing when the plea allocution contradicts the claim and no medical evidence supports it.

People v. Harrison · filed 2008-06-12

Finally, because defendant’s claim that he was incompetent at the time of the plea is contradicted by the plea allocution and he failed to submit any medical evidence to further substantiate that claim, County Court properly denied his CPL 440.10 motion without a hearing (see People v Bunce, 45 AD3d 982, 985 [2007], lv denied 10 NY3d 809 [2008]; People v Passino, 25 AD3d 817, 818-819 [2006], lv denied 6 NY3d 816 [2006]; People v Brown, 23 AD3d 702, 702-703 [2005], lv denied 6 NY3d 774 [2006]).

A court may deny a CPL 440.10 motion without a hearing when the record and motion submissions permit resolution of the claim.

People v. Jackson · filed 2008-02-21

Nor was it error for County Court to deny defendant’s CPL 440.10 motion without a hearing, since defendant’s arguments relating to the effectiveness of counsel’s representation could properly be resolved based upon the contents of the record and the motion submissions (see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Griffin, 24 AD3d 972, 974 [2005], lv denied 6 NY3d 834 [2006]; People v Hickey, 277 AD2d 511, 511 [2000], lv denied 95 NY2d 964 [2000]).

A defendant whose showing sufficiently supports an ineffective assistance claim is entitled to a hearing on a motion to vacate the judgment under CPL 440.10.

People v. Charlotten · filed 2007-10-18(1)

Thus, because defendant’s showing was sufficient to have warranted a hearing on his CPL 440.10 motions with respect to his claim of ineffective assistance of counsel, we hold these appeals in abeyance and remit this matter to County Court for this purpose (see People v Garcia, 33 AD3d 1050, 1053 [2006], lv denied 9 NY3d 844 [2007]; People v De Sarno, 239 AD2d 74, 77 [1998]; People v McMoore, 203 AD2d 612, 614 [1994]).

Section 440.10 does not require a hearing on every motion alleging ineffective assistance of counsel.

People v. Stephens · filed 2007-06-28

The court properly determined that defendant’s CPL 440.10 motion alleging ineffective assistance of counsel did not warrant a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).

A motion under § 440.10(1)(h) alleging ineffective assistance may be denied without a hearing when the defendant’s submissions do not warrant one.

People v. DeJesus · filed 2007-04-20(1)(h)

Contrary to defendant’s contention, County Court properly denied the motion without a hearing. Defendant contended in support of the motion that he was denied effective assistance of counsel but his submissions, which do not include an affidavit from trial counsel, are insufficient to warrant a hearing with respect to his allegation that trial counsel was ineffective in failing to advise him during plea negotiations of his possible sentencing exposure upon conviction after trial (see generally People v Rosario, 309 AD2d 537, 538 [2003], lv denied 1 NY3d 579 [2003]; People v Stewart, 295 AD2d 249, 249-250 [2002], lv denied 99 NY2d 540 [2002], cert denied 538 US 1003 [2003]; cf. People v Reynolds, 309 AD2d 976 [2003]; People v Perron, 273 AD2d 549, 550 [2000]).

A CPL 440.10 motion to vacate a conviction may be denied without a hearing.

People v. Ackridge · filed 2006-07-18

It was proper for the court to deny the defendant’s CPL 440.10 motion without a hearing (see People v Satterfield, 66 NY2d 796 [1985]; People v Robinson, 211 AD2d 733 [1995]).

Section 440.10 permits denial of a motion without a hearing when an ineffective assistance claim rests largely on unsubstantiated conclusory allegations.

People v. Broxton · filed 2006-11-08

The defendant’s claim of ineffective assistance of trial counsel, to the extent it is not procedurally barred as reviewable on direct appeal from the judgment of conviction, was largely based upon unsubstantiated conclusory allegations and thus was properly denied without a hearing (see People v Bacchi, 186 AD2d 663 [1992]).

A court may deny a Section 440.10 motion without a hearing when the trial record and motion submissions establish that counsel provided effective assistance.

People v. Ford · filed 2006-06-27

The court properly denied defendant’s GPL 440.10 motion without a hearing (see People v Satterfield, 66 NY2d 796 [1985]). Based on the trial record and the submissions on the motion, we find that counsel provided effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).

A CPL 440.10 motion may be denied without a hearing when its assertions are vague and unsupported.

People v. Chaffee · filed 2006-06-15

Finally, inasmuch as “[v]ague and unsupported assertions are insufficient to warrant a hearing,” we conclude that County Court did not err in denying defendant’s CPL 440.10 motion without a hearing (People v Griffin, 24 AD3d 972, 974 [2005], lv denied 6 NY3d 834 [2006]).

A CPL 440.10 motion may be denied without a hearing when the moving papers fail to substantiate a claim that the prosecutor knowingly used false material testimony.

People v. Cephas · filed 2006-02-21(1)(c)

The court properly denied defendant’s CPL 440.10 motion without a hearing, since his moving papers failed to substantiate his claim that the judgment was procured by the knowing use by the prosecutor of false material testimony (CPL 440.10 [1] [c]).

Under particular circumstances, counsel should be appointed for a hearing on a motion to reargue a CPL 440.10 motion.

People v. Chen · filed 2006-02-07

Under the particular circumstances of this case, the Supreme Court should have appointed counsel to represent the defendant at the hearing on his motion, in effect, for leave to reargue his prior motion pursuant to CPL 440.10 to vacate a judgment rendered August 19, 1997.

A CPL 440.10 motion may be decided without a hearing when the alleged errors by counsel do not depend on facts outside the record.

People v. Jackson · filed 2006-01-26

Finally, we turn to defendant’s motion pursuant to CPL 440.10 and his contention that he did not receive the effective assistance of counsel. Since the alleged errors by counsel are not dependent upon nonrecord facts, Supreme Court properly decided the motion without a hearing (see People v Satterfield, 66 NY2d 796, 799 [1985]).

A court may deny a CPL 440.10 motion without a hearing when the trial record and motion submissions provide enough information to decide it; vague, unsupported claims do not warrant a hearing.

People v. Griffin · filed 2005-12-15

County Court did not err in denying defendant’s CPL 440.10 motion without a hearing. ... Thus, no hearing was required on defendant’s CPL 440.10 motion.

A hearing on a CPL 440.10 motion is unnecessary to determine whether the defendant attended a discussion at which his presence was not required.

People v. Salley · filed 2006-01-24

Accordingly, we find it unnecessary to develop the record further, either by way of a reconstruction proceeding or a hearing on Salley’s CPL 440.10 motion, as to his presence or absence from the discussion at issue.

A court may deny a § 440.10 motion without a hearing when the motion papers fail to show material facts outside the record that would entitle the defendant to relief.

People v. Brown · filed 2005-11-03

No hearing is necessary if the motion papers fail to show that the nonrecord facts are material and would entitle him to relief (see People v Satterfield, 66 NY2d 796, 799 [1985]).

Section 440.10 does not require an evidentiary hearing for speculative and conclusory allegations or claims based on facts in the trial record known at conviction.

People v. Glanda · filed 2005-05-12

We find no abuse of discretion in Supreme Court’s denial of the motion, without a hearing, regarding this speculative and conclusory allegation (see People v Turcotte, 252 AD2d 818, 820 [1998], lv denied 92 NY2d 1054 [1999]). Moreover, the nonspeculative portions of the motion address facts contained in the trial record and known at the time of conviction. Thus, no evidentiary hearing was required (see People v Saunders, supra at 870; People v Burt, 246 AD2d 919, 923 [1998], lv denied 91 NY2d 1005 [1998]).

CPL 440.10 requires an evidentiary hearing when a motion presents facts outside the direct-appeal record that, if established, could entitle the defendant to relief.

People v. Nau · filed 2005-08-22

As the defendant set forth facts which did not appear in the record on direct appeal which, if established, could entitle the defendant to the relief sought, and since the failure to investigate or call exculpatory witnesses may amount to ineffective assistance of counsel (see People v Bussey, 6 AD3d 621, 623 [2004], lv denied 4 NY3d 828 [2005]; People v Fogle, 307 AD2d 299, 301 [2003]; People v Jones, 65 AD2d 802 [1978]), the County Court erred in denying the motion without first conducting an evidentiary hearing (see CPL 440.10; People v Castaneda, 189 AD2d 890, 891 [1993]; People v Liggins, 181 AD2d 916 [1992]; People v Hughes, 181 AD2d 912, 913 [1992]; see also People v Ferreras, 70 NY2d 630, 631 [1987]).

Section 440.10 permits summary denial without a hearing when a juror-misconduct claim rests on hearsay and lacks an affidavit from someone with firsthand knowledge.

People v. Salaam · filed 1992-11-19

The trial court’s summary denial of the defendant’s post-judgment motion to set aside the verdict was not error. The source for trial counsel’s contention that the jurors read newspaper accounts of the trial during the proceedings—a radio interview with one of the jurors—was pure hearsay.

A CPL 440.10 motion may be denied without an evidentiary hearing when conclusory allegations of prosecutorial misconduct fail to raise an issue of fact.

People v. Bacchi · filed 1992-10-13

Furthermore, the trial court did not improvidently exercise its discretion in denying the defendant’s CPL 440.10 motion without first conducting an evidentiary hearing. ... Mere conclusory allegations of prosecutorial misconduct are alone insufficient to require a trial court to conduct an evidentiary hearing (see, People v Brown, 56 NY2d 242).

Section 440.10 permits an evidentiary hearing when affidavits supporting a motion to vacate raise factual questions about trial counsel’s assistance.

People v. Linksman · filed 1992-05-14

In view of the foregoing, there should be a hearing at which trial counsel would have an opportunity to counter defendant’s allegations and explain his trial strategy and tactics.

A motion to vacate under CPL 440.10(1) may be denied without a hearing when the record refutes the defendant’s allegations.

People v. Santana · filed 1992-02-20(1)

The trial court did not err in summarily denying defendant’s motion to vacate his judgment of conviction. Defendant’s sworn allegations that the courtroom was closed to the public off the record without any inquiry into the need therefor, are refuted by a record that was carefully reviewed by the court in concluding that the courtroom was in fact not closed. Thus there is no reason to remand for a hearing (see, People v Brown, 161 AD2d 527, lv denied 76 NY2d 891).

Section 440.10 requires an evidentiary hearing when a motion alleges facts outside the direct appeal record that, if established, could warrant relief.

People v. Liggins · filed 1992-03-30

A hearing should have been conducted in connection with the defendant’s motion to vacate the judgment, since he set forth facts in his affidavit which do not appear in the record on direct appeal from the judgment of conviction (see, People v Gonzalez, 160 AD2d 724, 725).

Section 440.10 permits a court to grant a motion to vacate without a hearing when the evidence satisfies the criteria for relief.

People v. Lewis · filed 1992-02-06

In light of the foregoing evidence, which essentially has been either provided or conceded by the People, a hearing pursuant to CPL 440.10 is unnecessary. The criteria for granting the motion without a hearing have been satisfied.

A CPL 440.10 motion alleging juror bias may be denied without a hearing when old, unsworn statements do not raise a triable issue about the judgment’s validity.

People v. De Leo · filed 1992-07-09

We likewise find no abuse of discretion in County Court’s summary denial of defendant’s CPL 440.10 motion to vacate the judgment on the ground of juror bias. The six-year-old unsworn statements relating comments allegedly made by two of the jurors are hardly sufficient to raise a triable issue regarding the validity of the judgment (see, People v Friedgood, 58 NY2d 467; People v Session, 34 NY2d 254; People v Britt, 148 AD2d 911; People v Butts, 140 AD2d 739).

Section 440.10 permits a hearing for a defendant to show a reasonable possibility that withheld Rosario material contributed to the guilty verdict.

People v. Wahad · filed 1991-12-19

The defendant is entitled to a CPL 440.10 hearing to permit him to make this showing.

A motion under section 440.10(1)(h) may be denied without a hearing when the defendant does not explain why he failed to present evidence supporting his claim.

People v. Fox · filed 1991-04-09(1)(h)

The trial court properly denied defendant’s article 440 motion without a hearing. Defendant moved for relief, claiming that the judgment was obtained in violation of a right under CPL 440.10 (1) (h), but defendant’s motion did not explain his failure to adduce evidence in support of his claim.

A defendant moving under CPL 440.10 must allege facts that create an issue of fact, and the motion court has broad discretion over fact-finding procedures.

People v. Braun · filed 1990-11-08

Finally, for these same reasons, defendant’s appeal from denial of his motion to vacate the judgment pursuant to CPL 440.10, on the alleged basis of ineffective assistance of counsel, is meritless. We note the presumptive regularity of a judgment and defendant’s burden of coming forward with allegations which create an issue of fact (People v Session, 34 NY2d 254). It is well settled that the nature and extent of any fact-finding procedures relative to disposition of such motions rest largely in the discretion of the motion court (People v Tinsley, supra), which will be disturbed only upon a finding that the court abused its discretion (People v Friedgood, 58 NY2d 467). Defendant has not met his burden.

CPL 440.10 provides a hearing for jury impartiality and sequestration claims that cannot be resolved on the direct appeal record.

People v. Stanton · filed 1990-06-22

Defendant’s contentions that he was denied his right to an impartial jury and that the jury had not been properly sequestered cannot be decided on this record and may only be determined after a hearing conducted pursuant to CPL 440.10 (see, People v Cleveland, 132 AD2d 921, Iv denied 70 NY2d 750).

Section 440.10 calls for a hearing when a motion to vacate alleges facts outside the direct appeal record that, if established, could entitle the defendant to relief.

People v. Gonzalez · filed 1990-04-02

A hearing should have been conducted in connection with the defendant’s motion to vacate the judgment, since he set forth facts in his affidavit which do not appear in the record on direct appeal from the judgment of conviction.

A defendant seeking a hearing on a section 440.10 motion must show that the nonrecord facts are material and would entitle him to relief.

People v. Kittle · filed 1989-10-19

Although a hearing is often required when this type of claim is raised by postjudgment motion, such is not always the case. In order to be entitled to a hearing, defendant "must show that the nonrecord facts sought to be established are material and would entitle him to relief’ (People v Satterfield, 66 NY2d 796, 799).

Section 440.10 permits a hearing on a motion to vacate a guilty plea based on an unkept sentencing promise unless the record conclusively refutes the claim or the claim is incredible as a matter of law.

People v. Weintraub · filed 1973-02-13

Defendant’s allegations of an unkept promise with respect to sentence entitle him to a hearing, unless they are refuted conclusively by the record or are incredible as a matter of law (People v. Bagley, 23 N Y 2d 814; CPL 440.10, 440.30). The record does not conclusively refute defendant’s claims. Nor can it be said that they are incredible as a matter of law.

Section 440.10 provides a motion to vacate judgment for claims about an off-the-record sentence promise or a misunderstanding at sentencing about the release date.

People v. Wetmore · filed 1976-01-26

Where a defendant alleges an off-the-record sentence promise, or a misunderstanding on his part at the time of sentencing as to the date of his release ... the proper vehicle for relief is a motion to vacate the judgment pursuant to CPL 440.10 and 440.30 and not an appeal from the underlying judgment or sentence.

Section 440.10 permits a hearing on a motion to vacate when conflicting allegations warrant resolving the facts in the interest of justice.

People v. Wedra · filed 1977-03-21

We believe that in view of all the circumstances, and particularly in the light of the contending allegations, the interests of justice require that a hearing be held.

Section 440.10(1)(g) and (h) leave a motion for a new trial to the trial judge’s discretion.

People v. Welcome · filed 1975-09-24(1)(g), (1)(h)

By statute (CPL 440.10, subd 1, pars [g], [h]) a motion of this nature is addressed to the discretion of the Trial Judge.

Section 440.10 requires a hearing when a motion to vacate alleges an off-the-record sentencing promise that the record does not contradict and that is not incredible as a matter of law.

People v. Seminara · filed 1977-07-11

The trial court erred in denying, without a hearing, defendant’s motion to vacate the judgment pursuant to CPL 440.10. ... In the instant appeal the record does not contradict the allegation of an off-the-record promise; nor can it be said that the allegation is incredible as a matter of law.