N.Y. Crim. Proc. Law § 440.10

Section 440.10(3)(a) permits discretionary denial of a motion when the defendant failed to raise issues at trial and offers only conclusory allegations without a record for review.

People v. Green · filed 1991-11-27(3)(a)

It was well within the discretion of County Court to deny the motion since there was no record of the voir dire and the other assertions were only conclusory allegations (see, CPL 440.10 [3] [a]). The failure of defendant to raise these issues at trial deprived the People of an opportunity to fairly present proof and make a record subject to review.

Section 440.10(3)(b) and (c) leave the decision whether to hold a hearing on a second motion alleging ineffective assistance to the trial court’s discretion, even when the motion presents new or additional facts.

People v. Cortez · filed 1990-02-20(3)(b), (c)

The instant application constituted the defendant’s second motion pursuant to CPL 440.10 premised on ineffective assistance of trial counsel, and, accordingly, the question of whether to hold a hearing on the instant application, albeit premised on new or additional facts, rested in the exercise of the trial court’s discretion (see, CPL 440.10 [3] [b], [c]; People v Mazzella, 13 NY2d 997, 998). Based on the facts and circumstances of this case, we conclude that the trial court did not improvidently exercise its discretion in summarily denying the defendant’s motion.

Section 440.10(3) permits denial of a motion to vacate when the defendant could have developed a claim at trial but unjustifiably failed to do so.

People v. Nuness · filed 1989-06-02(3)

Because defense counsel could have asked the trial court for a hearing and, thus, could have readily made the facts concerning a possible Rosario violation appear on the record but unjustifiably failed to do so, the court properly denied the posttrial motion (see, CPL 440.10 [3]).

Section 440.10(3)(a) permits, but does not require, denial when a defendant unjustifiably failed to raise an issue before sentencing.

People v. Johnson · filed 1974-10-28(3)(a)

These conflicting contentions create an unresolved issue from which it appears there may be circumstances authorizing, though riot requiring, denial of the motion, and further since the court does not have to deny the motion in its discretion even if the defendant had unjustifiably failed to adduce such matter prior to sentence (CPL 440.10, subd. 3, par. [a]), the court in the interest of justice and for good cause shown under the circumstances will exercise its discretion and proceed to consider the merits of the motion.

Section 440.10(3)(a) permits a court to deny a motion to vacate when the defendant unjustifiably failed to raise an issue before sentencing despite having facts that could have supported appellate review.

People v. Simon · filed 1977-02-03(3)(a)

Based upon the decisional law of this State, this application for post-conviction relief is an attempt to avoid the appellate process and must be denied. This application must likewise be denied because it falls squarely within the prohibition of CPL 440.10 (subd 3, par [a]).

Section 440.10(3)(a)’s due diligence requirement is not satisfied by a three-year delay explained only by counsel’s work on an appeal.

People v. Friedgood · filed 1983-03-30(3)(a)

We believe that this explanation, in light of defendant’s three-year delay in bringing this motion, is insufficient, as a matter of law, to satisfy the due diligence requirement of CPL 440.10 (subd 3, par [a]).

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant knew or should have known of a claim in time to raise it at trial and preserve it for direct appeal.

People v. Lanahan · filed 1983-07-28(3)(a)

The record reveals that defendant was or should have been aware of the inconsistency at a time when he could have presented the issue to the jury and preserved it for direct appellate review. Accordingly, the trial court properly denied his motion ... particularly since the issue was a collateral one, relating only to whether defendant was an active or passive participant in the crimes.

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant could have developed the supporting facts with due diligence before sentencing but unjustifiably failed to do so.

People v. Donovon · filed 1985-04-01(3)(a)

Having failed to do so, he may not now avail himself of a CPL article 440 motion as a means of supplementing the record on appeal herein.

Section 440.10(3)(a) and (c) permits denial of a motion to vacate a judgment on the grounds specified in those provisions.

People v. Farinaro · filed 1985-04-01(3)(a), (c)

Although defendant attempted to adduce additional evidence in support of his claim in conjunction with a motion to vacate the judgment, and, thereafter, in a motion for renewal or reargument thereof, the motion to vacate the judgment was properly denied and, upon renewal and reargument, that determination was properly adhered to (CPL 440.10 [3] [a], [c]), and defendant may not rely upon those motions as a means of supplementing the record on appeal herein (see, People v Donovon, 107 AD2d 433).

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant could have raised the supporting facts before sentencing with due diligence and shows no good cause for failing to do so.

People v. Coles · filed 1988-11-28(3)(a)

However, the facts supporting the immunity claim could have been, with due diligence, readily made to appear on the record. Defense counsel, who was present during the entire Grand Jury proceeding, could have made a motion to dismiss the indictment. No "good cause” is shown why former defense counsel failed to make such a motion. ... Since neither the exception of fundamental constitutional rights nor subject matter jurisdiction apply to defendant’s claim, coram nobis or a motion pursuant to CPL 440.10 is inappropriate.

Section 440.10(3)(c) permits a court to deny a motion to vacate when the defendant could have adequately raised the ground in an earlier motion but did not.

People v. Thomas · filed 1989-02-06(3)(c)

CPL 440.10 (3) (c) affords the court discretion to deny a motion to vacate a conviction when the defendant in a previous motion "was in a position adequately to raise the ground or issue underlying the present motion but did not do so.” The court’s finding should not be disturbed.

Section 440.10(3)(a) gives the court discretion to consider a motion’s merits despite a claimed procedural defect.

People v. Farrell · filed 1994-01-10(3)(a)

At the outset, the prosecution proffers a procedural defect requiring dismissal of defendant’s application. According to CPL 440.10 (3) (a) the court may deny a motion to vacate a judgment of conviction which is on appeal when the facts underlying the issue raised could have with due diligence by the defendant been made to appear on the record for adequate appellate review but the defendant unjustifiably failed to adduce such matter prior to sentence. The court rejects this contention outright. Taking into account the nature of the dispute, the interests of justice require the court to resolve the substantive questions rather than reject the application for technical procedural reasons. In any event, the requirements of section 440.10 for the purpose of reviewing the question raised by defendant are within the sound discretion of the court.

Section 440.10(3)(a) permits, but does not require, a court to deny a motion when the defendant unjustifiably failed to put an issue on the trial record despite being able to do so with due diligence.

People v. Clark · filed 1994-01-26(3)(a)

The statutory bar of CPL 440.10 (3) (a) is permissive, not mandatory. In this case, it is not an abuse of discretion to bar Rosario relief.

Section 440.10(3)(a) and (c) permits a court to deny a meritless motion to vacate on procedural grounds.

People v. McMillan · filed 1995-02-21(3)(a), (c)

Since the motion lacked any merit, it was also an appropriate exercise of discretion for the court to deny it on procedural grounds (CPL 440.10 [3] [a], [c]).

Section 440.10(3)(c) gives a court discretion to consider a postjudgment motion in the interest of justice.

People v. Causeway Construction Co. · filed 1995-02-23(3)(c)

The court has certain discretion in its review of a postjudgment motion such as this and in the interest of justice will consider the motion. (CPL 440.10 [3] [c].)

Section 440.10(3)(c) permits a court to reject a claim that could have been raised in an earlier motion to vacate.

People v. Sanchez · filed 1995-02-28(3)(c)

Furthermore, this claim should have been raised during defendant’s first unsuccessful CPL 440.10 motion (CPL 440.10 [3] [c]).

Section 440.10(3)(b) gives a court discretion to deny a motion to vacate when the same ground was raised in an earlier motion.

People v. Lewis · filed 1995-03-02(3)(b)

CPL 440.10 (3) (b) says that a court "may” deny a motion to vacate if the ground was raised on a prior CPL article 440 motion (People v Glinton, 74 NY2d 779, 780; see also, People v Moolenaar, 207 AD2d 711). The use of the word "may” indicates that the court has discretion.

A claim based on information unavailable during an earlier CPL 440.10 proceeding is not procedurally barred from being raised in a second motion.

People v. Lake · filed 1995-03-13

However, the statements obtained by the defendant’s investigators from that witness prior to the first CPL 440.10 hearing did not include any reference to the possibility that a detective had written something down at the time the witness viewed the photographs, and the witness allegedly refused to cooperate with the defendant’s attorney in his attempt to follow up on the investigators’ report. Accordingly, the record does not support the County Court’s finding that the defendant was procedurally barred from raising the Rosario and Brady claims in his second CPL 440.10 motion.

Section 440.10 permits rejection of claims that were or could have been raised on direct appeal or in an earlier motion.

People v. De Oliveira · filed 1996-01-04

The remainder of defendant’s arguments are unavailing, for as County Court determined, they relate to matters that either were, or could have been, raised on his direct appeal or in the context of his original CPL 440.10 motion (see, People v Glinton, 74 NY2d 779, 780; People v Sanchez, 212 AD2d 487, 488, lv denied 85 NY2d 980; People v Rossney, 186 AD2d 926, lv denied 81 NY2d 794).

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant knew the supporting facts before sentencing and offers no adequate justification for failing to raise them then.

People v. Berezansky · filed 1996-07-18(3)(a)

The facts that defendant relies upon in support of his motion were known prior to his plea and sentence and we find his reasons for not raising the issues unpersuasive. ... He admits that he never told his attorney of these facts because he did not trust her. This, in our view, does not constitute a justifiable reason for failing to raise the issues (see, CPL 440.10 [3] [a]).

Section 440.10(3) permits, but does not require, a court to deny a motion because the claim could have been raised in an earlier motion.

People v. Bell · filed 1998-10-29(3)

With regard to the prosecution contention that the motion should be barred under CPL 440.10 (3) because the claim could have been brought in an earlier motion, such statutory bar is permissive, not mandatory.

Section 440.10(3)(a) bars consideration of an interpreter claim the defendant had opportunities to raise at trial but did not.

People v. Wong · filed 1998-12-10(3)(a)

As for defendant’s contentions that he was improperly denied the services of a competent interpreter at his arraignment or during the pretrial preparation period, and that the interpreter appointed for the trial was unsatisfactory due to her inexperience and inability to communicate in the particular dialects with which defendant was most familiar, his failure to raise these issues at any time during the trial, despite having been afforded numerous opportunities to do so, precludes their consideration at this juncture (see, CPL 440.10 [3] [a]; People v Ramos, 26 NY2d 272, 274; People v Perez, 198 AD2d 446, 447, lv denied 82 NY2d 929; People v Hatzipavlou, 175 AD2d 969, lv denied 79 NY2d 827).

Section 440.10(3)(c) permits denial of a later motion when the defendant could have raised its grounds in an earlier motion.

People v. Dominguez · filed 1999-01-26(3)(c)

The court properly denied defendant’s CPL 440.10 motion alleging ineffective assistance of counsel, on the ground that defendant had filed a previous CPL 440.10 motion and could have raised the issues set forth in the second application on the first but failed to do so (CPL 440.10 [3] [c]).

Section 440.10(3)(c) permits denial of a motion to vacate when the defendant could have raised the issue in an earlier motion.

People v. Washington · filed 1999-04-28(3)(c)

CPL 440.10 (3) (c) permits denial of a motion to vacate where the defendant was in a position to raise the issue upon a previous motion. Defendant cannot avoid the consequences of his prior omission of the 302’s by attempting to insert them by way of a motion to rehear rather than a new motion.

Section 440.10(3)(a) permits denial of a claim that the defendant could have raised at trial but did not.

People v. Hall · filed 2000-01-13(3)(a)

In failing to raise this issue at trial by requesting a hearing or seeking sanctions for the alleged nondisclosure, defendant failed to preserve it for appellate review (see, CPL 440.10 [3] [a]; People v Nuness, 151 AD2d 987, 988, supra; People v Lanahan, 96 AD2d 675, 676-677; cf., People v Berezansky, 229 AD2d 768, 771, lv denied 89 NY2d 919).

Section 440.10(3)(a) and (c) can bar a motion challenging trial recordings that were disclosed to the defendant well before trial.

People v. Stern · filed 2000-03-16(3)(a), (3)(c)

The remaining branch of defendant’s motion, alleging improper redactions of tape-recorded conversations admitted at defendant’s trial and disclosed to him well in advance of trial, are procedurally defective (CPL 440.10 [3] [a], [c]; 440.30 [4]) and without merit.

Section 440.10 permits denial of a motion to vacate a judgment for procedural defects under subsections (2)(c) and (3)(a) and (c).

People v. Medina · filed 2000-06-20(2)(c), (3)(a), (3)(c)

The motion was also procedurally defective in various respects (see, CPL 440.10 [2] [c]; [3] [a], [c]).

Section 440.10(3)(c) bars a second motion raising ineffective assistance claims that could have been raised in an earlier motion.

Diaz v. Mantello · filed 2000-09-26(3)(c)

Under New York law, petitioner may not bring a second § 440.10 motion to raise these additional ineffective assistance of counsel claims because he has already filed one § 440.10 motion alleging ineffective assistance of counsel, and these additional claims could have been raised in the first motion and were not.

Section 440.10(3)(a) does not permit a motion to vacate to develop facts outside the trial record when those facts should have been placed on the record during trial.

People v. Williams · filed 2001-09-18(3)(a)

While an article 440 motion is designed for the purpose of developing facts dehors the trial record, this does not apply to facts that should have been placed on the record during trial (see, CPL 440.10 [3] [a]).

Section 440.10(3)(c) permits denial of a later request for DNA testing when the defendant could have raised the issue in an earlier motion to vacate.

People v. Pugh · filed 2001-11-15(3)(c)

As such, he is not entitled to a second opportunity to obtain DNA testing, having failed to pursue such testing either prior to trial (see, People v Kellar, supra, at 410) or upon his prior CPL 440.10 motions, despite having been in a position to adequately raise this issue (see, CPL 440.10 [3] [c]).

Section 440.10(3) permits, but does not require, denial of an ineffective assistance claim that could not be adequately reviewed on direct appeal from the trial record.

Pratt v. Greiner · filed 2002-10-04(3)

Under CPL § 440.10, a state court would have discretion, but would not be required, to deny Pratt's allegation that counsel’s failure to pursue an alibi defense constituted ineffective assistance, as the trial record failed to provide an adequate basis for review on direct appeal. ... Rather, Pratt's alibi allegation falls under CPL § 440.10(3)'s discretionary denials.

Section 440.10(3)(c) gives state courts discretion to deny a motion that raises a ground the movant could have raised in an earlier motion.

Montalvo v. Mantello · filed 2002-12-03(3)(c)

However, New York state courts have discretion to deny a motion to vacate a judgment when a petitioner was in a position in a previous motion to raise a ground or issue underlying the present motion, but did not. CPL § 440.10(3)(c). Notwithstanding the state court’s discretion to deny the motion, the Court finds that the state should have the first opportunity to review this unexhausted claim.

Section 440.10 permits denial of a motion without a hearing when the defendant offers no satisfactory explanation for failing to raise a known issue before sentencing.

People v. White · filed 2002-12-19

Next, we are of the view that County Court correctly denied the CPL article 440 motion without a hearing. Defendant has failed to offer a satisfactory explanation for not raising the issues concerning the execution of the search warrant prior to sentence (see People v Berezansky, supra at 771).

Section 440.10(3)(a) permits a court to deny a motion to vacate when the defendant unjustifiably failed to put supporting facts on the trial record despite having a reasonable opportunity to do so.

People v. Degondea · filed 2003-12-09(3)(a)

In light of the foregoing, we believe that the circumstances of this case fall within the scope of CPL 440.10 (3) (a), under which a motion to vacate a judgment may be denied in the exercise of the court’s discretion. Substituting our discretion for that of the motion court, we find that this motion should have been denied pursuant to CPL 440.10 (3) (a).

Section 440.10(3)(c) permits a court to deny a later motion when the defendant could have raised its ground in an earlier motion but did not.

People v. Rodriguez · filed 2004-06-11(3)(c)

Therefore, as he was in a position to raise this ground in his previous motion, it is denied pursuant to CPL § 440.10 (3) (c).

Section 440.10(3)(a) does not bar a motion based on counsel’s suspension when it would have been incongruous for the defendant to raise the suspension while that counsel represented her.

People v. Atkinson · filed 2004-08-31(3)(a)

CPL 440.10 (3) (a) permits a court to deny a motion to vacate a judgment without a hearing where defendant could have, with due diligence and before sentencing, placed all essential facts on the record. ... The court finds that the defendant is not barred under this section.

Section 440.10(3)(a) permits discretionary denial when a defendant unjustifiably failed to develop facts for appellate review, but it does not justify denial when the defendant lacked an adequate opportunity to do so.

People v. Wagstaffe · filed 2014-09-17(3)(a)

At the outset, the Supreme Court improvidently exercised its discretion in denying those branches of the defendants’ motions which were pursuant to CPL 440.10 (1) (b) by invoking the permissive ground for denial set forth in CPL 440.10 (3) (a), and finding that the “defendants could have with due diligence placed on the record before sentencing facts to provide an adequate basis for appellate review, but unjustifiably failed to do so.”

Section 440.10(3)(a) permits denial of a motion to vacate when the defendant unjustifiably failed to raise an available claim before sentencing.

People v. Chaney · filed 2018-04-26(3)(a)

As defendant could have raised this issue prior to sentencing and unjustifiably failed to do so, and the necessary facts do not appear in the record on direct appeal, County Court properly denied the motion to vacate the judgment on this ground ( see CPL 440.10 [3] [a]; People v Howe , 150 AD3d 1321, 1323 [2017]; People v Oddy , 144 AD3d 1322, 1324 [2016], lv denied 29 NY3d 1131 [2017]).

Section 440.10(3)(c) permits a court to deny a motion when the defendant could adequately have raised the ground in a previous motion but did not.

People v. Palompelli · filed 2019-12-04(3)(c)

On a previous motion that the defendant made pursuant to CPL 440.10, he "was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (CPL 440.10[3][c]; see CPL 440.30[2]).

Section 440.10(3)(c) permits a court to bar a claim raised in a later motion to vacate when the defendant could have raised it in an earlier motion.

Barton v. Chappius · filed 2020-03-31(3)(c)

To comply with the requirements of NYCPL §§ 10(2)(a), 3)(c) and 470.05(2), Petitioner needed to raise his claim of prosecutorial misconduct in his first motion to vacate the judgment.

Section 440.10(3)(c) permits denial of a motion to vacate when the defendant could have raised the claim in an earlier Section 440.10 motion but did not.

People v. Robinson · filed 2020-05-27(3)(c)

The defendant was in a position to adequately raise his current ineffective assistance of counsel argument in his two previous motions pursuant to CPL 440.10, but did not do so ( see CPL 440.10[3][c]; People v Huggins , 130 AD3d 1069).

Section 440.10(3)(c) does not bar a second motion merely because the defendant omitted a supporting attorney affidavit from an earlier motion raising the same issue.

People v. Perez · filed 2020-07-09(3)(c)

Contrary to the People's contention, defendant's failure to include an affidavit from this attorney on the first CPL article 440 motion did not preclude him from filing the second CPL article 440 motion that did contain such an affidavit ( see CPL 440.10 [3] [c]; People v Wright , 27 NY3d 516, 522 [2016]; People v Session , 34 NY2d 254, 256 [1974]).

Section 440.10(3)(c) permits, but does not require, a court to deny a successive motion raising a claim that could have been raised earlier.

Tineo-Santos v. Piccolo · filed 2021-01-27(3)(c)

Under this discretionary standard, New York courts have declined to procedurally bar a successive 440.10 motion—even where defendant could have raised his ineffective assistance of counsel claim in a prior 440.10 motion—where granting the motion would be “in the interest of justice and for good cause shown.” ... Accordingly, Tineo-Santos’ claim of ineffective assistance of trial counsel is not procedurally barred.

Section 440.10 (3) (a) permits a court to deny a motion to vacate when the defendant could have presented the supporting facts before sentencing with due diligence but unjustifiably failed to do so.

People v. Miller · filed 2022-06-16(3)(a)

Pursuant to CPL 440.10 (3) (a), a court may deny a motion to vacate when the facts in support of such motion "could with due diligence by the defendant have readily been made to appear on the record" and the defendant, in turn, "unjustifiably failed to adduce such [proof] prior to sentenc[ing]" ( see People v Stanley , 189 AD3d 1818, 1819 [2020]; see also People v Durham , 195 AD3d at 1321). Under the circumstances presented here, we cannot say that County Court abused its discretion in denying this branch of defendant's motion to vacate without a hearing ( see People v Stanley , 189 AD3d at 1819; People v Spradlin , 188 AD3d 1454, 1460 [2020], lv denied 37 NY3d 960 [2021]; People v Berezansky , 229 AD2d 768, 771 [1996], lv denied 89 NY2d 919 [1996]).

Section 440.10(3)(a) permits summary denial of a motion to vacate based on claims the defendant could have raised before sentencing to create a record for direct appeal.

People v. Fish · filed 2022-09-29(3)(a)

Defendant's various largely unsupported allegations — including that counsel failed to investigate the charges or a potential intoxication defense, to move to withdraw his guilty plea as he purportedly requested, to make pretrial motions, to meet with him for sufficient time to discuss the plea offers or to secure his testimony before the grand jury upon his request — are all matters that could have been but were not raised before County Court, prior to sentencing, which would have created a record for direct appeal ( see id. ). As such, the court's summary denial of the motion on these grounds was appropriate ( see CPL 440.10 [3] [a]).

Section 440.10(3)(c) permits a court to deny a motion to vacate when the defendant could have raised the issue in an earlier motion.

Daum v. Eckert · filed 2023-02-01(3)(c)

The court's decision that Daum's claim was barred under the provisions of N.Y. Crim. Proc. Law § 440.10 concerning the repeated presentation of claims for post-conviction relief was also reasonable.

Section 440.10(3)(c) permits denial of a claim that could have been raised in an earlier motion to vacate the conviction.

People v. Holguin · filed 2023-05-04(3)(c)

This claim was procedurally barred, because defendant filed two prior CPL 440.10 motions, in which he could have raised the same claim ( see CPL 440.10[3][c]).

A denial under § 440.10(3)(c) for failing to raise an available claim in an earlier motion is an independent and adequate state ground that bars federal habeas review unless the petitioner establishes an exception to procedural default.

Vicente v. Superintendent of Eastern NY Correctional Facility · filed 2023-06-01(3)(c)

“Numerous courts in this Circuit have concluded that a state court denial based upon CPL § 440.10(3)(c) constitutes an adequate and independent state law ground, which forecloses federal habeas corpus review.” Steward v. Graham, 2007 U.S. Dist. LEXIS 101402, at *19-20 (N.D.N.Y. Jul. 23, 2007). Therefore, Judge Horowitz’s decision is an independent and adequate state procedural ground to deny his claim unless, as explained above, the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

Section 440.10(3)(c) allows a court to deny a claim omitted from an earlier motion to vacate judgment; a denial on that ground can foreclose federal habeas review.

Wingate v. Titus · filed 2023-08-08(3)(c)

This claim is procedurally barred. ... And “courts in this Circuit have concluded that a state court denial based upon CPL § 440.10(3)(c) constitutes an adequate and independent state law ground, which forecloses federal habeas corpus review.”

Section 440.10(3)(c) bars claims that a defendant could have raised in prior postconviction motions but did not.

People v. Smith · filed 2024-01-16(3)(c)

Defendant's ineffective assistance of counsel claims were procedurally barred because he could have, but did not, raise them in his prior postconviction motions (CPL 440.10[3][c]; see People v Holguin , 216 AD3d 436, 437-438 [1st Dept 2023], lv denied 40 NY3d 935 [2023]).

Section 440.10(3)(c) permits a court to deny a motion to vacate a judgment when the defendant could have raised the same ground in a previous motion under the section but did not.

People v. Williams · filed 2024-03-20(3)(c)

Nevertheless, the court properly denied the motion pursuant to CPL 440.10(3)(c), which provides that "the court may deny a motion to vacate a judgment when . . . [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" ( see People v Edmee , 183 AD3d 759, 760-761).

Section 440.10(3)(a) permits a court to deny a motion to vacate when the defendant unjustifiably failed to raise an issue before sentencing despite having facts that could have provided an adequate basis for appeal.

Miller v. LaClair · filed 2024-04-25(3)(a)

Having examined the underlying Section 440 Motion papers and the state court’s Section 440 Decision, this Court agrees with Respondent that Petitioner’s guilty-plea-claim is barred from federal habeas review since the state court’s decision regarding that claim was properly based upon C.P.L. § 440.10 (3)(a), an adequate and independent state procedural rule.

Section 440.10(3)(c) permits a court to deny a claim that could have been raised in an earlier motion, but it does not impose an absolute bar on successive motions.

Miller v. Fennessey · filed 2024-05-16(3)(c)

Moreover, while C.P.L. § 440.10(3)(c) allows a court to deny a claim that could have been raised in a defendant’s previous C.P.L. § 440.10 motion, “there is no absolute rule . . . barring successive C.P.L. § 440.10 motions [asserting the same claims].”

Section 440.10(3)(c) can bar a claim that a defendant failed to raise in an earlier motion to vacate the conviction.

People v. Micheaux · filed 2024-11-07(3)(c)

Defendant's claims that his plea was involuntary and that his resentencing counsel was ineffective are procedurally barred, because he failed to raise the plea involuntariness claim before the resentencing court and failed to raise the ineffectiveness claim in his second CPL 440.10 motion, filed after resentencing (CPL 440.10[3][c]; see People v Dominguez , 257 AD2d 511, 512 [1st Dept 1999], lv denied 93 NY2d 872 [1999]).

Section 440.10(3) gives courts discretion to reconsider an issue decided on an earlier motion when the circumstances warrant it.

People v. Phelps · filed 2025-03-20(3)

Still, having made that bar discretionary rather than mandatory ( compare CPL 440.10 [2]; 440.30 [2]), the Legislature anticipated there would be times when it would be appropriate to reconsider issues previously decided on the merits ( see CPL 440.10 [3]; cf. People v Gaston , 163 AD3d 442, 443 [1st Dept 2018]). Doubtless those times should be rare; but, in our view, this is one of them.

Vacating a conviction on a CPL 440.10 motion revives all counts in the indictment.

People v. Cosme · filed 1991-01-15

While we agree that vacatur of defendant’s conviction upon his CPL 440.10 motion revived all of the counts in the indictment and that, therefore, a plea of guilty should not have been accepted to less than the entire indictment absent the District Attorney’s consent (CPL 220.10 [4] [a]), the Criminal Procedure Law does not authorize an appeal of that conviction by the People (see, CPL 450.20).

Section 440.10(6)(a) does not prevent reinstatement of all original indictment counts when representation by an unlicensed lawyer renders the entire proceeding void.

People v. Washington · filed 1976-06-15(6)(a)

A determination of nullity or validity in this set of circumstances must be total and cannot be fractional. The peculiar situation involved in this proceeding is not within the purview of CPL 440.10 (subd 6, par a).

Subdivision 7 permits the remaining counts of an accusatory instrument to be restored to their preplea status when a guilty plea is vacated.

People v. Llorente · filed 1977-04-19(7)

We find that they did have standing (People v Hansen, 38 NY2d 17), and accordingly the count to which they pleaded, being Count 5 in the Llórente indictment, and Count 20 in the Doronzoro indictment, should be dismissed, and the accusatory instruments should be restored to the prepleading status, with all the counts therein contained at the time of the plea, except those ordered dismissed. (CPL 440.10, subd 7.)

Section 440.10(7) permits restoration of an indictment dismissed in satisfaction of a guilty plea when the resulting conviction is vacated.

People v. Pilgrim · filed 1981-10-30(7)

Pursuant to CPL 440.10 (subd 7) Indictment No. 33054 also is restored to the Trial Calendar.

Section 440.10 directs the court where judgment was entered to entertain a motion to vacate that judgment, even after probation supervision transfers to another county.

People v. Mitchell · filed 2010-06-15

These provisions direct the court in which judgment was entered—i.e., the sentencing court—to entertain a defendant’s postjudgment motion to vacate a judgment (section 440.10) or sentence (section 440.20).

A hearing on a section 440.10 motion may be held in the county of indictment even when the trial was transferred to another county.

People v. Klein · filed 1978-09-29

The Supreme Court being a court of State-wide jurisdiction rather than an aggregation of separate courts (Matter of Schneider v Aulisi, 307 NY 376, 381), the appropriate venue for a hearing of this nature would be in the county of the indictment, rather than the county to which the case was transferred for the purpose of trial.

Section 440.10(1) requires a motion to vacate a conviction to be made in the court that entered the judgment.

Pirro v. Cirigliano · filed 1996-04-08(1)

CPL 440.10 (1) provides that a motion to vacate a judgment of conviction must be made in the court in which the judgment was entered.

CPL 440.10(1) relief cannot be sought in the Appellate Division.

People v. Hines · filed 2001-06-18(1)

To the extent that the appellant seeks relief pursuant to CPL 440.10, we note that this Court is not the proper forum (see, CPL 440.10 [1]).

Section 440.10(1) requires a motion to vacate a judgment of conviction to be filed in the court that rendered it.

Allevato v. Howard · filed 2022-07-26(1)

Furthermore, a 440 motion must be filed with the same court which rendered the judgment of conviction.

Section 440.10(1) gives the court in which a judgment was entered authority to hear a motion to vacate it.

Kelsey v. Catena · filed 2023-06-22(1)

As to the posttrial proceedings, CPL 440.10 (1) clearly provides that the authority to vacate a judgment is provided to "the court in which it was entered." Thus, plaintiff's contention that Catena could not preside over the post-conviction motions has no merit based upon the plain language of the statute.

Section 440.10 permits a court to treat a mislabeled motion to vacate a guilty plea as a motion to vacate the judgment when the prosecution cannot fulfill the plea agreement.

People v. Cohen · filed 1991-10-22

The record indicates that the court before whom the plea was taken considered defendant’s motion as one to vacate the judgment under CPL 440.10, despite defendant’s mistaken invocation of CPL 220.60 (3) in the motion papers. As the People were unable to fulfill their part of the plea agreement, the trial court properly vacated the guilty plea (see, People v Selikoff, 35 NY2d 227, 241, cert denied 419 US 1122) and returned the matter to its pre-plea status.

Section 440.10(1)(b) provides a motion to vacate a conviction when a guilty plea was induced by a promise of jail time credit, if the claim has not already been decided or otherwise foreclosed.

Hagerman v. Henderson · filed 1981-01-23(1)(b)

Petitioner’s remedy, if not already passed upon or otherwise foreclosed, is to move in Westchester County pursuant to CPL 440.10 (subd 1, par [b]) to vacate the judgment of conviction (People v Caputo, 36 NY2d 653, 654; Matter of Leonard v Barnes, 280 App Div 1, affd 303 NY 989; People v Massaline, 71 AD2d 981).

A defendant seeking to vacate a conviction under section 440.10(1) bears the ultimate burden of establishing a legal basis for relief, even if the People do not refute the motion.

People v. Miller · filed 2021-11-04(1)

Even if we were to agree with defendant that the People's initial answering papers failed to contradict or refute his allegation of ineffective assistance of counsel (which we do not), any such failure would not automatically entitle defendant to the relief requested in the motion, as defendant bears the ultimate burden of establishing a legal basis to vacate the judgment of conviction ( see CPL 440.10 [1]; 440.30 [3]) and the People may — but are not required to — file "an answer denying or admitting any or all of the allegations of the motion papers" (CPL 440.30 [1] [a]; see People v Wright , 129 AD3d 1217, 1218 n 1 [2015], affd 27 NY3d 516 [2016]).

A CPL 440.10 motion requires sworn allegations of fact; failure to submit a proper motion can abandon the claim.

People v. Oliveri · filed 2006-05-04

Even if deemed a “de facto CPL 440.10 motion” (id.), such a motion would require sworn allegations of fact, and by failing to submit a proper motion, as directed by the court, defendant abandoned this claim (see People v Akleh, 297 AD2d 574 [2002], lv denied 99 NY2d 579 [2003]).

A defendant moving under § 440.10 to vacate a judgment must establish the claim by clear and convincing evidence.

People v. Jacobson · filed 1981-05-28

It is also mindful that, upon a motion to vacate a judgment, the defendant must bear the burden of establishing his contention by clear and convincing evidence.

Once a defendant sustains his burden on a CPL 440.10 motion, the People must come forward with evidence to sustain the conviction.

People v. Green · filed 1988-12-23

Once the defendant has sustained his burden on a CPL 440.10 motion, the burden shifts to the People to come forward with evidence to sustain the conviction.

A CPL 440.10 motion to vacate a conviction requires evidentiary support for the factual claim on which it rests.

People v. Divine · filed 1993-05-27

Defendant’s argument that the complainant testified at the Wade hearing while defendant was absent from the courtroom is unsupported by any evidentiary proof, and thus his motion to vacate the conviction was properly denied.

A motion under CPL 440.10 alleging juror misconduct requires evidentiary support; hearsay affidavits and an affidavit from a juror who did not participate in deliberations are insufficient.

People v. Stevens · filed 2000-09-29

We reject the contention of defendant that County Court improvidently denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of juror misconduct. ... The affidavit of the one juror submitted by defendant also is insufficient to support the motion.

A motion under section 440.10 can be denied when it contains no factual allegations supporting the claimed ground for vacating the judgment.

People v. Shabazz · filed 2003-01-14

Defendant’s presentence motion to withdraw his guilty plea and his motion to vacate judgment pursuant to CPL 440.10 were both properly denied. ... Defendant’s motion to vacate judgment contained no factual allegations relating to this issue.

Section 440.10 does not permit a motion to vacate a judgment to raise an issue that relates solely to the validity of a sentence.

People v. Hillriegel · filed 2010-11-18(2)(d)

As that issue relates solely to the validity of his sentence, it cannot be raised in the present motion (see CPL 440.10 [2] [d]; People v Reed, 61 AD3d 1216, 1217 [2009]).

Section 440.10(2)(d) requires denial of a motion to vacate a judgment when the issue concerns only the validity of the sentence, rather than the conviction.

People v. Baraka · filed 1981-06-10(2)(d)

This section, however, is inapplicable since paragraph (d) of subdivision 2 requires the court to deny a motion to vacate a judgment when “[t]he ground or issue relates solely to the validity of the sentence and not to the validity of the conviction.”

Section 440.10(2)(d) requires denial of a motion to vacate a judgment when the claim challenges only the sentence, not the conviction.

People v. Ekinici · filed 2002-03-14(2)(d)

If the claim relates solely to the sentence, the court must dismiss the motion made under CPL 440.10. The motion to vacate the fine grounded in CPL 440.10 is denied.

Section 440.10(2)(d) requires denial of a motion to vacate a judgment that challenges only the validity of the sentence.

People v. Reed · filed 2009-04-23(2)(d)

As defendant’s CPL 440.10 motion was limited solely to the validity of his sentence, the motion was properly denied (see CPL 440.10 [2] [d]).

Section 440.10 is not the proper vehicle to challenge a court’s failure to direct that a sentence run concurrently with a federal sentence.

People v. Oquendo · filed 2017-11-15

The defendant’s remaining contention, that the Supreme Court abused its discretion in failing to direct that his sentence run concurrent with his federal sentence, was not properly the subject of the defendant’s motion pursuant to CPL 440.10 (see CPL 440.20).

A sentencing challenge in a CPL 440.10 motion may be converted, in the interest of justice, to a CPL 440.20 motion.

People v. Hamn · filed 2018-02-09

To the extent that defendant challenged his sentence, in the interest of justice we convert that part of defendant's pro se motion to one pursuant to CPL 440.20.

Section 440.10 does not permit a claim that a sentence is harsh and excessive.

People v. Stuber · filed 2022-05-12

Defendant's efforts to raise the issue of whether his sentence was harsh and excessive in the context of his CPL article 440 motion are unavailing, as that issue is not "a proper subject of a CPL 440.10 motion" ( People v Sloley , 179 AD3d 1308, 1313 [2020], lv denied 35 NY3d 974 [2020]).

A court deciding a CPL 440.10 motion based on a Rosario violation before direct appeal is exhausted applies the per se error rule without requiring a showing of prejudice.

People v. Townsend · filed 1993-01-22

Jackson dealt with a motion made after all direct appeals had been exhausted and cannot be logically interpreted to impose that same harmless error standard where the motion is made prior to any appeal.

Section 440.10(1)(f) permits vacatur for undisclosed Rosario material after direct appeal when there is a reasonable possibility that the failure to disclose it contributed to the verdict.

People v. Bin Wahad · filed 1993-01-07(1)(f)

But to prevail on this motion, the defendant only has to establish a reasonable possibility of creating a reasonable doubt. ... Accordingly, the motion to vacate the defendant’s conviction is granted and a new trial is ordered.

Section 440.10(1)(f) requires a defendant seeking to vacate a judgment for undisclosed Rosario material to show prejudice, whether the motion is made before or after direct appeal is exhausted.

People v. Robles · filed 1992-03-10(1)(f)

In view of the opinion of the Court of Appeals in People v Jackson (supra), and the language of CPL 440.10 (1) (f), this court holds that defendant is required to show that he was prejudiced by the failure of the People to disclose the two police reports. Because the failure to disclose the reports did not prejudice the defendant, defendant’s motion is denied.

Section 440.10(1)(f) requires courts assessing prejudice from undisclosed Rosario material to consider the cumulative effect of all violations on the verdict.

People v. Bianco · filed 1992-02-21(1)(f)

Additionally, though left unsaid by the Court of Appeals, it is implicit in the rule which it promulgated that a reviewing court should assess the cumulative effect of any/all Rosario violations on the verdict, rather than to view each error in isolation and if no single violation seems enough then to deny a defendant’s motion.

A § 440.10 motion based on newly discovered evidence requires a reasonable probability of a more favorable verdict; Rosario’s per se reversal rule does not apply to an appeal from its denial.

People v. Howard · filed 1987-04-08(1)(g)

Therefore, we hold that the per se Rosario rule, limited to an appeal from a judgment of conviction, does not apply to this appeal from the denial of a CPL 440.10 motion. Applying the statutory standard on such a motion — that it is reasonably probable that disclosure of any of the documents would have led to a different verdict — we are in agreement that the motion to vacate the conviction was properly denied.

Section 440.10(1)(f) permits vacatur when a failure to disclose Rosario material would have required reversal on direct appeal, without a separate showing that the material would have changed the verdict.

People v. D'Amico · filed 1987-07-01(1)(f)

There appearing no reason why the result on a CPL 440.10 motion to vacate judgment of conviction should differ from that which would occur on a direct appeal, the court is compelled by the Ranghelle decision, with great reluctance, to find that the prosecutor’s failure to discover and disclose the relevant portions of the Mastracco statements constitutes improper and prejudicial conduct which would have required a reversal of the judgment upon an appeal.

Section 440.10 permits a postjudgment motion based on a Rosario violation, and the per se rule applies without proof of prejudice.

People v. Jackson · filed 1988-11-07

The court therefore holds that the Rosario rule applies to motions made pursuant to CPL 440.10 or pursuant to the common-law writ of coram nobis.

After a defendant exhausts a direct appeal, a court must find prejudice from a Rosario violation before vacating a conviction on a CPL 440.10 motion.

People v. Rathbun · filed 1993-03-29

Moreover, assuming, arguendo, that there was a Rosario violation, where, as here, a defendant’s CPL 440.10 motion is made after exhausting his direct appeal, the trial court must first find prejudice to the defendant as a result of the Rosario violation before it may vacate a judgment of conviction (see, People v Jackson, 78 NY2d 638).

A CPL 440.10 motion alleging a Rosario violation is governed by the per se error rule while the defendant’s direct appeal remains pending.

People v. Robles · filed 1993-06-21

Thus, it is clear that since the defendant here had not exhausted his direct appeal, the motion court should have applied the per se error rule in deciding his motion pursuant to CPL article 440.

A Section 440.10 motion alleging a Rosario disclosure violation requires a showing of prejudice when the Appellate Division has affirmed the conviction before the motion is decided.

People v. Machado · filed 1993-09-28

But Judge Titone, who vigorously dissented in the Jackson case (supra), has interpreted that case as requiring a showing of prejudice where, as here, the conviction has been affirmed by the Appellate Division prior to a determination of the CPL 440.10 motion. ... Judge Titone’s interpretation of the Jackson case (supra)— albeit a disapproving one — is adopted as a correct statement of the law.

Section 440.10 requires a defendant who raises a Rosario claim after exhausting direct appeal to show actual, ascertainable prejudice from the prosecution’s failure to disclose Rosario material.

People v. Alvarado · filed 1994-02-07

A defendant who has exhausted direct appeal and subsequently seeks to raise a Rosario claim ... by way of a CPL 440.10 motion must show that actual, ascertainable prejudice ... from the prosecution’s failure to turn over Rosario material (see, People v Jackson, 78 NY2d 638, 641, 649).

After direct appeal is exhausted, a CPL 440.10 motion based on a Rosario violation requires a showing that the violation actually prejudiced the defendant.

People v. Stevens · filed 1993-12-20

In People v Jackson (78 NY2d 638, on remand 154 Misc 2d 718, affid 198 AD2d 301), the Court of Appeals held that, after the right of direct appeal has been exhausted, a motion to vacate a judgment of conviction pursuant to CPL article 440 based on a claim of Rosario error should not be granted unless the Rosario violation in question was actually prejudicial. We conclude that the Rosario material improperly withheld from the defendant in this case had no "significant impeachment value” (People v Bianco, 183 AD2d 284, 288) and that there is no reasonable possibility that the Rosario violation affected the jury’s verdict.

Section 440.10(1)(f) permits vacatur for undisclosed Brady material requested by the defendant when there is a reasonable possibility that nondisclosure contributed to the verdict.

People v. White · filed 1994-01-04(1)(f)

Insofar as the previously undisclosed DD-5 represents material that the defendant was entitled to under Brady v Maryland (373 US 83), where, as here, a specific discovery request was made by the defendant, a motion to vacate judgment under CPL 440.10 (1) (f) is evaluated under the same " 'reasonable possibility’ ” standard applicable to Rosario violations (People v Vilardi, 76 NY2d 67, 77; People v Jackson, supra, at 649).

On a CPL 440.10 motion raising a Rosario disclosure violation after direct appeal, the defendant must show a reasonable possibility that the undisclosed evidence would have prevented a conviction.

People v. Ramos · filed 1994-07-14

Since, however, the issue is raised in the context of a CPL 440.10 motion after defendant’s direct appeal has long been concluded, defendant must demonstrate "a reasonable possibility” that he would not have been convicted had the particular evidence been available at trial (People v Jackson, 78 NY2d 638, 649).

A per se error standard applies to a Rosario violation raised in a CPL 440.10 motion filed before the direct appeal is exhausted.

People v. Machado · filed 1996-06-24

Furthermore, because the defendant filed his CPL 440.10 motion before his direct appeal had been exhausted, a per se error standard is applicable (see, People v Jackson, 78 NY2d 638; People v Washington, 196 AD2d 346, 348, n 2).

A defendant who raises a Rosario violation solely through a CPL 440.10 motion after the time for direct appeal expires must show actual, ascertainable prejudice.

People v. Bigtree · filed 1996-09-19(1)(f)

It is axiomatic, however, that a defendant who has exhausted his or her direct appeal from a judgment of conviction and subsequently seeks to raise a Rosario claim solely by way of a CPL 440.10 motion does not benefit from this general rule, but rather must show that actual, ascertainable prejudice resulted from the People’s failure to comply with Rosario (see, People v Jackson, 78 NY2d 638, 641, 649).

Section 440.10(1)(f) requires a defendant seeking to vacate a conviction for a Rosario disclosure violation to show prejudice, whether the motion is made before or after direct appeal is exhausted.

People v. MacHado · filed 1997-06-10(1)(f)

We are persuaded, however, that the better course is to apply Jackson: Rosario claims raised by way of CPL 440.10 motions made before direct appeal is exhausted should be rejected unless the violation prejudiced defendant.

A Rosario nondisclosure claim raised through a motion to vacate a conviction under section 440.10 requires a showing of prejudice rather than per se reversal.

People v. Cohen · filed 1997-09-23

Since defendant’s Rosario claim has been raised by way of CPL article 440, a standard of prejudice rather than per se reversal would apply (People v Machado, 90 NY2d 187). We conclude that there was no reasonable possibility that the nondisclosure contributed to the verdict.

Section 440.10(1)(f) requires a defendant seeking vacatur for a Rosario disclosure violation to show prejudice; losing a pre-sentence motion that would have succeeded satisfies that requirement.

People v. Morales · filed 1997-12-18(1)(f)

If the District Attorney had produced the Moss report on the motion to set aside the verdict, this court would have found a Rosario violation under the per se standard and defendant’s motion would have been granted. Defendant has therefore been prejudiced by the failure to deliver the Moss report in response to that motion and his motion for a new trial must be granted.

A defendant seeking to vacate a conviction for a Rosario violation under CPL 440.10(1)(f) must show resulting prejudice.

People v. Kronberg · filed 1998-04-23(1)(f)

This principle clearly applies to defendants Primack and Speed, both of whom, having been sentenced, are proceeding under CPL 440.10, and neither of whom has demonstrated, or could demonstrate prejudice in light of the substantial evidence introduced at trial that defendants committed a $32,000,000 fraud, even if the Klund Chart and such 302 reports as may exist constituted Rosario material.

A court may hear an otherwise premature section 440.10 motion before sentencing, but a Rosario nondisclosure claim still requires a reasonable possibility that the nondisclosure contributed to the verdict.

People v. Thompson · filed 1998-06-10(1)(f)

This court, exercising its powers under the Judiciary Law, authorized the making of this premature motion under CPL 440.10 and ordered a hearing. ... The same CPL 440.10 subdivision as was applicable in both Jackson and Machado (supra) is applicable in this case. It would be incongruous for this court to interpret the word “prejudice” differently from the Court of Appeals. The court finds that the “reasonable possibility that the failure to disclose the Rosario material contributed to the verdict” standard applies to the instant matter.

A defendant raising a disclosure violation in a section 440.10 motion must show a reasonable possibility that the nondisclosure materially contributed to the verdict.

People v. Potter · filed 1998-10-02

Because defendant raised this issue by way of a CPL 440.10 motion, defendant must show prejudice, i.e., that there was “a ‘reasonable possibility’ that the nondisclosure materially contributed to the verdict” (People v Machado, 90 NY2d 187, 193; see, People v Cohen, 242 AD2d 473, 473-474, lv denied 91 NY2d 871).

A Rosario disclosure claim raised in a postjudgment § 440.10 motion requires a showing of a reasonable possibility that the nondisclosure materially contributed to the verdict, even if the direct appeal remains pending.

People v. Barrett · filed 1998-12-01

Where defendant’s Rosario claim is adjudicated pursuant to a post-judgment CPL 440.10 motion, even one brought before his direct appeal is exhausted, it is error to apply a “per se” rule (People v Machado, 90 NY2d 187; see, People v Cohen, 242 AD2d 473, lv denied 91 NY2d 871; People v Kronberg, 243 AD2d 132, lv denied 92 NY2d 880; People v Oliviery-Perez, 248 AD2d 645, lv denied 91 NY2d 1011). Rather, defendant was required to demonstrate “a reasonable possibility that the prosecution’s failure to make Rosario disclosure materially contributed to the verdict” (People v Machado, 90 NY2d, supra, at 188-189).

A defendant seeking to vacate a judgment under CPL 440.10 because Rosario material was withheld must show prejudice, whether the motion is filed before or after the direct appeal concludes.

People v. Rescigno · filed 2000-05-01

However, in People v Machado (90 NY2d 187), the Court of Appeals held that a defendant seeking to vacate a judgment on Rosario grounds, either before or after the direct appeal was concluded, had to demonstrate that nondisclosure of the subject material was prejudicial (see, People v Jackson, 78 NY2d 638). Applying that standard, we conclude that there was no reasonable possibility that the failure to turn over the subject Rosario material contributed to the verdict against the defendant (see, People v Tellier, 272 AD2d 347 [decided herewith]).

A defendant seeking to vacate a judgment under CPL 440.10 for nondisclosure of Rosario material must show that the nondisclosure was prejudicial.

People v. Tellier · filed 2000-05-01

In the case at bar, therefore, the defendant was required to establish that nondisclosure of the Rosario material was prejudicial.

A defendant who raises a Rosario disclosure claim in a CPL 440.10 motion after exhausting a direct appeal must show actual prejudice.

People v. Harden · filed 1992-12-29

As the Court of Appeals has now held, a defendant who has exhausted his direct appeal and raises a Rosario claim by a CPL 440.10 motion is required to make an actual showing of prejudice as a result of the People’s failure to turn over the Rosario material (People v Bin Wahad, 79 NY2d 787).

Section 440.10(1)(b)’s fraud ground encompasses a prosecutor’s deliberate withholding of evidence tending to exonerate the defendant.

Baba-Ali v. State of New York · filed 2005-07-05(1)(b)

The claimant demonstrated that this Court’s reversal of his conviction was based, in part, on the ground that the judgment was procured by prosecutorial misconduct that was tantamount to fraud (see CPL 440.10 [1] [b]). The prosecutor’s deliberate withholding of evidence which tended to exonerate the claimant constituted a “fraudulent act,” which is “[c]onduct involving bad faith, [or] dishonesty,” (Black’s Law Dictionary 687 [8th ed 2004]), as well as a “fraud on the court,” which is “a lawyer’s . . . misconduct [in a judicial proceeding] so serious that it undermines . . . the integrity of the proceeding” (id. at 686).

Section 440.10(1)(b)'s ground for vacatur based on prosecutorial misrepresentation is coterminous with the constitutional ground in (1)(h) under these circumstances.

People v. Burke · filed 2026-03-02(1)(b)

Defendant also seeks relief pursuant to CPL 440.10 (1) (b), which provides for vacatur of a judgment "procured by duress, misrepresentation or fraud on the part of the court or prosecutor or a person acting for or in behalf of a prosecutor." In the court's view, under these circumstances that is coterminous with the demand for vacatur grounded in CPL 440.10 (1) (h).

Section 440.10(1)(b) permits vacatur when a judgment was procured by prosecutorial duress; repeated meetings with a reluctant witness did not establish that his testimony was procured by duress.

People v. Spruill · filed 2018-09-12(1)(b)

Turning to the merits, pursuant to CPL 440.10(1)(b), a judgment may be vacated upon the ground that it "was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor." Here, the defendant failed to show that Newton's testimony was the product of duress based on his postsuicide attempt productions to meet with the prosecutor.

Section 440.10(1)(b) permits vacatur for a misleading forensic report by a person acting for the prosecution even if prosecutors did not know of the misrepresentation.

People v. Seeber · filed 2012-04-26(1)(b)

Veeder—as an employee of the State Police—qualifies as a person acting on behalf of the prosecution (see People v Santorelli, 95 NY2d 412, 421 [2000]), and it is clear that the fiber analysis he performed here was, at the very least, misleading. That, in our view, is sufficient to afford defendant a basis for relief under CPL 440.10 (1) (b)—notwithstanding the fact that the People admittedly were unaware of Veeder's underlying misconduct.

Section 440.10(1)(b) permits a court to vacate a conviction if the judgment was procured by duress, misrepresentation, or fraud by the court or a prosecutor.

People v. Thomas · filed 2008-07-17(1)(b)

A court may grant a defendant’s motion to vacate a judgment of conviction if, as is relevant here, it finds that the “judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor” (CPL 440.10 [1] [b]).

Section 440.10(1)(c) covers material trial evidence whose falsity the prosecutor knew or should have known.

Turner v. State · filed 2006-12-05(1)(c)

However, paragraph (c) of section 440.10 (1) is more promising from claimant’s vantage, although limited on its terms to evidence that was known to be false. With that said, claimant cites persuasive precedent that paragraph (c) covers the situation when the falsity of the evidence should have been known by the prosecutor, and therefore the paragraph (c) predicate is satisfied here.

Section 440.10(1)(b) requires fraud, misrepresentation, or duress; suggestive identification procedures alone do not qualify without a false statement to the defendant or court.

Gordon v. State · filed 1988-09-27(1)(b)

Thus, a plea or judgment obtained by false testimony is one procured through fraud. However, the sine qua non for relief under either subdivision is that the defendant or court was told something which was not true.

Section 440.10(1)(b) requires facts showing that duress, misrepresentation, or fraud by the court, prosecutor, or someone acting for them procured the judgment.

People v. Deblinger · filed 1998-11-06(1)(b)

To maintain a claim under CPL 440.10 (1) (b), the defendant must allege facts establishing that the judgment was procured by duress, misrepresentation or fraud on behalf of the court or a prosecutor or a person acting in behalf of a court or prosecutor.

Section 440.10(1)(c) does not warrant vacatur based on an expert’s false testimony about his credentials when the prosecution neither knew nor should have known of the misrepresentation.

People v. Drake · filed 1998-12-31(1)(c)

In support of the motion, defendant presented evidence that the People’s expert witness at trial gave false testimony regarding his credentials. While that evidence “might have affected the jury’s assessment of his credibility, there is nothing in the record indicating that the prosecution was aware, or should be charged with knowledge that he was misrepresenting his credentials” ... Thus, vacatur is not warranted under CPL 440.10 (1) (c).

Section 440.10(1)(c) does not warrant a hearing on an alleged perjured statement that was made after the grand jury indicted the defendant.

People v. Beaumont · filed 2002-11-14(1)(c)

Finally, as regards defendant’s motion to vacate the judgment of conviction, defendant maintains that a hearing on this motion was warranted due to new evidence that a key statement was perjured (see CPL 440.10 [1] [c]). Essentially, defendant alleges that the indictment against him was supported by a correction officer’s perjured statement in order to “cover up” a jailhouse beating. We find no merit to this claim, particularly since the statement in question was made well after the grand jury acted to indict defendant.

Under section 440.10(1)(b), belated disclosure of suppressed exculpatory evidence does not necessarily break the causal link between prosecutorial fraud and a conviction.

Baba-Ali v. State · filed 2012-06-28(1)(b)

The State’s more substantial argument for dismissal of the claim is that, even if there was misrepresentation by the prosecutor, claimant will be unable to show, as he must to recover, that that was the procuring cause of his conviction (see Court of Claims Act § 8-b [5] [b] and CPL 440.10 [1] [b]). The State argues that any claim that nondisclosure operated to procure the verdict must be defeated by the circumstance that the CHOP records were in the end disclosed, even if belatedly, and placed in evidence for consideration by the factfinder. We cannot agree, however, that an eleventh hour turnover would invariably so neatly sever the causal link between prolonged suppression of exculpatory evidence and a guilty verdict.

Inadvertently failing to alert the court to inaccurate police testimony does not constitute fraudulent conduct under § 440.10(1)(c).

People v. Villegas · filed 2012-08-14(1)(c)

We decline to dismiss the indictment on the ground that the People should have known that the police officers testified falsely about the callback (see CPL 440.10 [1] [c]). ... On this record, we conclude that the People’s failure to timely bring the inaccuracy of the officers’ testimony to the court’s attention was due to inadvertence rather than fraudulent conduct.

Section 440.10(1)(b) requires a defendant seeking to vacate a judgment to establish that the plea was procured by misrepresentation or fraud by the court or a prosecutor.

People v. Forest · filed 2016-07-21(1)(b)

Given that defendant did not establish that his plea was procured by misrepresentation or fraud "on the part of the court or a prosecutor" (CPL 440.10 [1] [b]), this aspect of his motion to vacate was properly denied.

Section 440.10(1)(b) requires prosecutorial misrepresentation or fraud; prosecutorial misconduct alone does not satisfy that ground for vacatur.

Scheidelman v. State of New York · filed 2017-06-09(1)(b)

In addition, although this Court reversed claimant’s judgment of conviction on the ground of prosecutorial misconduct, that misconduct does not rise to the level of prosecutorial misrepresentation or fraud, as required by section 8-b (3) (b) and the applicable subdivisions of CPL 440.10 (cf. Baba-Ali v State of New York, 19 NY3d 627, 633-634 [2012]).

Section 440.10(3)(b) permits denial of a motion to vacate when a prior state proceeding decided the issue on the merits; a proper denial under it creates a procedural bar to federal habeas review.

Dorcinvil v. Kopp · filed 2024-01-05(3)(b)

The Second Circuit has not addressed whether a state court’s proper invocation of Section 440.10(3)(b) operates as a procedural bar, but the consensus among district courts in the circuit is that it does. ... The Court finds those district court decisions well reasoned and joins the consensus. The Court also finds nothing improper about how the trial court invoked Section 440.10(3)(b) here.

Section 440.10(3)(c) does not bar a later motion when the defendant could not adequately raise the claim in the earlier motion; the court also has discretion to reach the merits.

People v. Pendergraph · filed 2019-03-22(3)(c)

We also conclude that CPL 440.10 (3) (c) does not bar defendant's contentions. Although defendant made a prior CPL 440.10 motion, at that time defendant was not "in a position to adequately raise the ground or issue underlying the present motion" (CPL 440.10 [3] [c]) and, in any event, we have the power to exercise our discretion to reach the merits of defendant's contention ( see People v Reed , 159 AD3d 1551, 1552 [4th Dept 2018]; People v Pett , 148 AD3d 1524, 1524 [4th Dept 2017]).

Section 440.10(3)(b) permits a court to summarily deny a motion that essentially renews a prior motion.

People v. Heywood · filed 2016-04-26(3)(b)

The court properly exercised its discretion under CPL 440.10 (3) (b) in summarily denying what was essentially a renewal motion.

Section 440.10(3)(c) permits a court to deny a motion when the defendant could adequately have raised its grounds in a prior motion but did not.

People v. Lewis · filed 2016-05-24(3)(c)

In any event, assuming for the sake of argument that defendant’s claims could not have been fully raised on direct appeal (see CPL 440.10 [2] [c]), the court properly exercised its discretion in denying his motion on the ground that on his prior 440.10 motion, he “was in a position adequately to raise the ground [s] . . . underlying the present motion but did not do so” (CPL 440.10 [3] [c]).

Section 440.10(3)(b) allows a court to decline to revisit a claim raised and rejected in an earlier motion to vacate.

The People v. Negron · filed 2015-11-23(3)(b)

However, we do not address the merits of this portion of his claim, as it was raised and rejected in defendant's original CPL 440.10 motion (see CPL 440.10 [3][b]; CPLR 2221 [e]).

Section 440.10(3)(b) and (c) permits a court to deny a motion to vacate without a hearing when the claim was raised or could have been raised in an earlier motion.

People v. Graves · filed 2009-05-19(3)(b), (c)

Since this contention was either raised, or could have been raised, in the context of a first, unsuccessful motion pursuant to CPL 440.10 made by the defendant, it was within the Supreme Court’s discretion to deny, without a hearing, that branch of the defendant’s current motion (see CPL 440.10 [3] [b], [c]; People v Cochrane, 27 AD3d 659, 660 [2006], cert denied 538 US 1060 [2003]).

Section 440.10(3)(b) permits a court to deny a motion to vacate without an evidentiary hearing when a prior motion resolved the same issue on its merits.

People v. Glinton · filed 1989-07-11(3)(b)

Supreme Court acted within its discretion in denying defendant’s motion to vacate his 1959 judgment of conviction without an evidentiary hearing. The merits of the "newly discovered evidence” issue raised in this collateral proceeding were previously decided on a prior CPL 440.10 motion (CPL 440.10 [3] [b]).

Section 440.10(2)(a) bars vacatur on a ground previously decided on the merits in a direct appeal.

People v. Skinner · filed 1990-03-20(2)(a)

It is therefore clear that insofar as defendant’s motion rests upon an allegedly improper denial of a hearing with respect to jury problems during deliberation, his motion to vacate the conviction should have been denied under CPL 440.10 (2) (a) which provides that no such relief may be granted when "[t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment”. This is precisely the situation present here.

Section 440.10(2)(a) bars a posttrial motion based on an issue raised and decided on direct appeal.

People v. Rossney · filed 1992-10-29(2)(a)

This issue was raised and decided on defendant’s direct appeal to this court and, accordingly, may not form the basis for a posttrial motion (see, CPL 440.10 [2] [a]; People v Skinner, 154 AD2d 216, lv denied 76 NY2d 796).

Section 440.10(3)(b) permits denial of a motion to vacate when the issues were previously raised and decided on the merits.

People v. Govan · filed 1993-12-30(3)(b)

We also affirm County Court’s denial of defendant’s CPL 440.10 motion as the issues raised therein were raised and determined on the merits by County Court on defendant’s motion to dismiss indictment No. 988-86 (see, CPL 440.10 [3] M).

Section 440.10(3)(c) permits denial of a later motion when the defendant could adequately have raised the issue in an earlier motion.

People v. Moolenaar · filed 1994-09-20(3)(c)

The court also properly denied defendant’s additional CPL 440.10 motion regarding a jury note issue, on the ground that defendant did not raise this issue in his previous CPL 440.10 motion, although in a position adequately to do so (CPL 440.10 [3] [c]).

Section 440.10(2) bars consideration of lineup-procedure and probable-cause issues at this stage of a motion to vacate a judgment.

People v. Robinson · filed 1995-01-23(2)

Contrary to the defendant’s assertions, issues pertaining to the propriety of the lineup procedure, as well as probable cause issues, may not be considered at this stage of the proceedings (see, CPL 440.10 [2]).

Section 440.10(3)(b) permits denial of a motion without a hearing when the claim was previously determined on the merits.

People v. Medina · filed 1997-06-10(3)(b)

The trial court properly denied defendant’s CPL 440.10 motion without a hearing because defendant’s claim regarding the sufficiency of the Grand Jury presentation was previously determined on the merits (CPL 440.10 [3] [b]), and his claim that the indictment was facially insufficient is refuted by the indictment filed with the court (CPL 440.30 [2]).

Section 440.10(2)(a) requires denial of a motion raising an issue already decided on the merits on direct appeal.

People v. DiGuglielmo · filed 2010-05-25(2)(a)

A court “must deny” a motion pursuant to CPL 440.10 when the ground or issue raised “was previously determined on the merits upon an appeal from the judgment” (CPL 440.10 [2] [a]).

Section 440.10(2)(a) requires denial of a motion to vacate when the issue was previously decided on the merits on appeal, absent a retroactive change in controlling law; a denial on that ground can bar federal habeas review.

Chrysler v. Guiney · filed 2014-03-31(2)(a)

Petitioner’s ineffective-assistance-of-trial-counsel claim is therefore precluded by Justice Berry’s decision denying this claim on an independent-and-adequate state ground.

Section 440.10(3)(b), as applied through CPL 440.30(2), permits but does not require denial of a repeat DNA-testing motion.

FLAX, NEWNON, PEOPLE v · filed 2014-05-09(3)(b)

Inasmuch as defendant’s previous CPL 440.30 (1-a) motion was denied, CPL 440.10 (3) (b), made applicable to this motion pursuant to 440.30 (2), permits but does not require denial of the motion.

Section 440.10(3)(b) prevents a defendant from relitigating issues raised in an earlier motion and resolved on appeal.

People v. Sheppard · filed 2014-07-03(3)(b)

As these issues were considered and resolved upon the prior appeal, they are not now properly before us (see CPL 440.10 [3] [b]; People v Glinton, 74 NY2d 779, 780 [1989]; People v De Oliveira, 223 AD2d 766, 769 [1996], lv denied 88 NY2d 1020 [1996]).

Section 440.10(3)(b) permits a court to reject a renewed claim that was decided in an earlier motion.

People v. Toribio · filed 2017-02-27(3)(b)

The defendant’s claim that he misunderstood the terms of the plea or court proceedings because of lack of an interpreter is rejected for the reasons stated by the court in the prior motion. Further motion practice on this ground is unwarranted.

Section 440.10(3)(b) does not bar an issue that was not raised in a prior motion, and (3)(c) allows a court to consider an issue even if it could have been raised earlier.

PETT, GARY J., PEOPLE v · filed 2017-03-24(3)(b), (3)(c)

We note at the outset that Judge King did not reach the merits of defendant’s motion because he determined that the issue had been decided in a prior CPL article 440 motion (see CPL 440.10 [3] [b]) and that, in any event, it could have been raised therein (see CPL 440.10 [3] [c]). We conclude that the precise issue raised herein was not raised in a prior motion and, although a court may refuse to consider the issue because it could have been raised in the prior motion but was not, we exercise our discretion to reach the merits (see People v Hamilton, 115 AD3d 12, 21).

Section 440.10(3)(b) permits denial of a motion to vacate when an earlier motion in the same case raised the same ground and was denied.

People v. Loika · filed 2017-09-28(3)(b)

The record, however, reveals that defendant made a previous CPL 440.10 motion in this action on this same ground and that the motion was denied. In view of this, we find that County Court (Sypniewski, J.) properly denied the present motion under CPL 440.10 (3) (b) (see People v Huggins, 130 AD3d 1069 [2015], lv denied 26 NY3d 1089 [2015]).

Section 440.10(3) permits a court to consider claims raised or raisable in an earlier postjudgment motion even when it could refuse to consider them.

People v. Reed · filed 2018-03-23(3)

The court denied the motion on the ground that the issues raised by defendant had either been decided in a prior CPL article 440 motion ( see CPL 440.10 [3] [b]), or could have been raised in that prior motion ( see CPL 440.10 [3] [c]). Although a court may refuse to consider issues that were or could have been raised in prior postjudgment motions, we nevertheless "exercise our discretion to reach the merits" ( People v Pett , 148 AD3d 1524, 1524 [4th Dept 2017]; see People v Pinto , 133 AD3d 787, 790 [2d Dept 2015], lv denied 27 NY3d 1004 [2016]; see generally People v Hamilton , 115 AD3d 12, 21 [2d Dept 2014]), and we conclude that the court erred in denying the motion without a hearing.

Section 440.10(3)(b) permits a court to deny a renewed request without a hearing when the same issue was decided on the merits in a prior motion.

People v. Simmons · filed 2020-02-07(3)(b)

County Court properly denied without a hearing defendant's motion with respect to DNA testing inasmuch as that issue was previously raised and addressed on the merits on defendant's prior motion seeking the same relief ( see CPL 440.10 [3] [b]; People v Simmons , 63 AD3d 1605, 1606 [4th Dept 2009], lv denied 12 NY3d 929 [2009]).

Section 440.10 (3) (b) permits a court to deny a motion when the issue it raises was previously decided on the merits in a prior motion.

People v. Bellamy · filed 2020-10-29(3)(b)

The claims raised in both of defendant's motions concern counsels' alleged misadvise to reject the plea offers, and that issue was previously determined on the merits when the court denied defendant's first motion to vacate; thus, the court properly denied the second motion under CPL 440.10 (3) (b) ( see People v Loika , 153 AD3d 1516, 1517 [2017]; People v Huggins , 130 AD3d 1069, 1069 [2015], lv denied 26 NY3d 1089 [2015]).

Section 440.10(3)(b) permits denial when the same ground was previously decided on the merits in a motion to vacate; a prior suppression ruling does not bar a new ineffective assistance claim.

Anderson v. Miller · filed 2022-09-26(3)(b)

The county court did not consider or decide any issues related to ineffective assistance of counsel. Because CPL § 440.10(3)(b), "allows a state court to deny a motion to vacate a conviction where the ground raised was previously determined on the merits in a prior motion to vacate [,]" ... the state court misapplied the procedural bar.

Section 440.10(3)(b) permits a court to summarily deny a successive motion that raises essentially the same grounds and issues as a prior unsuccessful motion.

People v. Rosario · filed 2022-09-27(3)(b)

The court providently exercised its discretion under CPL 440.10(3)(b) in summarily denying defendant's motion, which raised essentially the same grounds and issues that he had unsuccessfully raised on a prior motion ( see People v Heywood , 138 AD3d 607 [1st Dept 2016], lv denied 28 NY3d 971 [2016]).

Section 440.10(3)(b) permits a court to deny a motion that raises an issue decided on the merits in a prior motion.

People v. Stines · filed 2023-01-05(3)(b)

Inasmuch as County Court addressed defendant's claims of ineffective assistance of counsel in the first motion, the court properly exercised its discretion to deny the second motion as this issue was raised and determined on its merits in the first motion ( see CPL 440.10 [3] [b]; People v Chaney , 160 AD3d 1281, 1286 [3d Dept 2018], lv denied 31 NY3d 1146 [2018]).

A CPL 440.10 motion cannot be summarily denied based on a plea waiver unless the plea record shows that the defendant specifically waived the right to make postjudgment motions.

People v. John · filed 1990-07-12

Since the record of the plea proceeding does not evidence ... that defendant specifically waived his right to make postjudgment motions, County Court erred in summarily denying defendant’s CPL 440.10 motion on the basis of such a waiver.

Relief for a delay in deciding a CPL 440.10 motion requires a showing of actual prejudice.

People v. Valenti · filed 1991-07-25

We conclude that to be entitled to any relief defendant must show actual prejudice due to the trial court’s delay in rendering a decision on the CPL 440.10 motion (cf, People v Cousart, 58 NY2d 62).

Section 440.10(6) preserves all counts of the original indictment for retrial when a conviction is vacated on a motion under section 440.10.

People v. Spears · filed 2004-04-01(6)

... it is equally clear that when defendant’s first conviction was vacated as a result of his GPL 440.10 motion, all counts of the original indictment were preserved for retrial (see GPL 440.10 [6]).