N.Y. Crim. Proc. Law § 440.10

Section 440.10 provides a way to raise an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Fernandez · filed 2024-04-11

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal, as it involves matters not reflected in the record, and should be raised by way of a CPL 440.10 motion ( see People v Holder , — AD3d —, 2024 NY Slip Op 00814 [1st Dept 2024]; see also People v Maffei , 35 NY3d 264, 269-270 [2020]).

CPL 440.10 provides a collateral proceeding in which ineffective assistance of counsel claims may be more appropriately raised.

The People v. Yasif Sims · filed 2024-04-18

Defendant’s ineffective assistance of counsel claims are more appropriately brought in a collateral or post-conviction CPL 440.10 proceeding (see People v Henderson, 28 NY3d 63, 66 [2016]).

Section 440.10(2)(c) does not require denial of an ineffective assistance of trial counsel claim merely because it rests on errors apparent in the trial record.

Chase v. LaManna · filed 2024-04-23(2)(c)

As a result of the amendment, a court in New York State considering a C.P.L. § 440.10 motion may not deny ineffective assistance of trial counsel claims simply because they were based on errors apparent on the trial record, as was permissible under the former C.P.L. § 440.10(2)(c).

A CPL 440.10 motion is the procedure for raising an ineffective assistance claim that depends on matters outside the record.

People v. Slade · filed 2024-06-06

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record and, thus, must be raised in a CPL 440.10 motion ( see People v Gomez , 186 AD3d 422, 423-424 [1st Dept 2020]).

Section 440.10(2)(c) does not require dismissal of ineffective assistance of trial counsel claims merely because the alleged errors appear in the trial record.

Macleod v. McCarthy · filed 2024-06-17(2)(c)

As a result of the amendment, a court in New York State considering a C.P.L. § 440.10 motion may not deny ineffective assistance of trial counsel claims simply because they were based on errors apparent on the trial record, as was permissible under the former C.P.L. § 440.10(2)(c).

Section 440.10 provides a motion procedure for addressing ineffective-assistance claims that rely on both the trial record and facts outside it.

People v. Ward · filed 2024-06-20

As defendant's claims regarding what he told counsel and what counsel advised him, among others, concern both record-based and nonrecord-based allegations, they should be addressed together in their entirety in the context of a CPL 440.10 motion ( see People v Bailey , 224 AD3d 1044, 1046 [3d Dept 2024]; People v Taylor , 156 AD3d 86, 91-92 [3d Dept 2017], lv denied 30 NY3d 1120 [2018]).

Section 440.10(2)(c) does not require denial of an ineffective assistance of trial counsel claim merely because the alleged errors appear on the trial record.

Banks v. Macintosh · filed 2024-07-22(2)(c)

Because of the amendment, a court in New York State considering a C.P.L. § 440.10 motion may not deny ineffective assistance of trial counsel claims simply because they were based on errors apparent on the trial record, as was permissible under the former C.P.L. § 440.10(2)(c).

Section 440.10 is the procedure for raising an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Gray · filed 2024-09-24

Defendant's contention that his counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal, as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion ( see People v Holder , 224 AD3d 513, 514 [1st Dept 2024]).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim that cannot be resolved without evidence outside the trial record.

People v. Heusel · filed 2024-10-02

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Section 440.10 provides the motion for raising ineffective-assistance claims that depend on matters outside the direct-appeal record.

People v. Merrick · filed 2025-01-02

Defendant's contention that counsel rendered ineffective assistance by failing to preserve his Second Amendment claim is unreviewable on direct appeal because it involves matters not reflected in the record, and therefore must be raised in a CPL 440.10 motion ( see People v Slade , 228 AD3d 439, 439 [1st Dept 2024], lv denied 42 NY3d 940 [2024]).

Section 440.10 provides the appropriate forum for reviewing an ineffective-assistance claim in its entirety when the claim requires facts outside the trial record.

People v. Persaud · filed 2025-02-26

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal ( see People v Rodriguez , 224 AD3d 783, 785; People v Freeman , 93 AD3d 805, 806).

Section 440.10 provides the appropriate forum to review an ineffective-assistance claim in its entirety when the claim cannot be resolved without matters outside the trial record.

People v. Singh · filed 2025-03-05

Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim [*2]in its entirety, and we decline to review the claim on this direct appeal ( see People v Dunaway , 207 AD3d 742, 744; People v Freeman , 93 AD3d 805, 806; People v Maxwell , 89 AD3d at 1109).

Ineffective-assistance claims that are unreviewable on direct appeal must be raised in a CPL 440.10 motion.

People v. Jackson · filed 2025-04-15

Defendant's claims of ineffective assistance of counsel, based on his trial counsel's failure to object to certain arguments he raises on appeal, are unreviewable on direct appeal and must be raised in a CPL 440.10 motion ( see e.g. People v Rivera , 71 NY2d 705, 709 [1988]).

A CPL 440.10 motion is needed to address an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Kilian · filed 2025-05-02

Defendant's remaining ineffective assistance of counsel contention is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record ( see People v Maffei , 35 NY3d 264, 269-270 [2020]). We conclude that, because defendant has not made a CPL 440.10 motion, the merits of that contention may not be addressed on appeal.

CPL 440.10 provides a motion procedure for ineffective assistance claims that depend on matters outside the direct appeal record.

People v. Rajib · filed 2026-01-06

Defendant's ineffective assistance claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by the record, regarding counsel's strategy and preparation ( see People v Ceballos , 189 AD3d 414, 415 [1st Dept 2020], lv denied 37 NY3d 971 [2021]). In the absence of a CPL 440.10 motion, the merits of defendant's ineffectiveness claims may not be addressed on direct appeal.

Section 440.10 provides a motion for raising an ineffective-assistance claim that depends on matters outside the direct-appeal record.

People v. Wade · filed 2026-03-19

Defendant's contention that her counsel rendered ineffective assistance "is unreviewable on direct appeal, as it involves matters not reflected in the record, and must be raised in a CPL 440.10 motion" ( People v Gray , 230 AD3d 1039, 1039 [1st Dept 2024], lv denied 42 NY3d 1035 [2024]).

Section 440.10 is the procedure for raising an ineffective assistance claim that depends on matters outside the trial record.

People v. Harrison · filed 2026-03-19

Defendant's ineffective assistance claim based on trial counsel's failure to raise his Second Amendment claim is unreviewable at this time because it involves matters not reflected in the record and thus must first be raised in a CPL 440.10 motion ( see People v Subonteng , 245 AD3d 571, 572 [1st Dept 2026]).

Section 440.10 does not allow a trial court to review a claim of ineffective assistance of appellate counsel; that claim must be brought before the appellate tribunal that heard the primary appeal.

Garcia v. Scully · filed 1995-11-08

In that case, Judge Bellacosa explained in a thorough opinion why claims of ineffective assistance of appellate counsel could not be brought in the trial court under N.Y. C.P.L. § 440.10 and had to be brought in the appellate tribunal that considered the primary appeal.

Section 440.10(1)(f) requires a party seeking to set aside a verdict to show concealment of facts, bias, or prejudice.

People v. Cephus · filed 1996-02-26(1)(f)

To succeed in setting aside a verdict pursuant to CPL 440.10 (1) (f), the moving party must show concealment of facts, bias, or prejudice (see, Holland v Blake, 38 AD2d 344, affd 31 NY2d 734; People v Rosen, supra).

Section 440.10(1)(f) permits vacating a conviction for prejudicial trial conduct outside the record that would have required reversal if it had appeared in the record.

People v. Southall · filed 2017-11-28(1)(f)

In sum, the court should have granted defendant’s motion to vacate his conviction, since “[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment,” which “would have required a reversal of the judgment upon an appeal therefrom” if it had occurred on the record (CPL 440.10 [1] [f]).

Section 440.10(1)(f) allows a defendant to seek vacatur if he uncovers evidence outside the record demonstrating juror misconduct.

People v. Rivera · filed 2018-01-16(1)(f)

Further, there was no prejudice, because even if the denial of the adjournment prevented defendant from making a CPL 330.30(2) motion to set aside the verdict, it does not prevent him from making a CPL 440.10(1)(f) motion in the event he uncovers evidence outside the record demonstrating juror misconduct.

Section 440.10(4) permits a court to vacate a judgment, modify it to remove an improper sex offender certification, and reinstate it as modified.

People v. Richardson · filed 2025-04-03(4)

However, defendant does not seek such relief as part of his motion and, in such circumstances, CPL 440.10 (4) provides the appropriate mechanism to vacate a judgment of conviction, make the necessary modification in this unique circumstance and reinstate the judgment as modified in accordance with the scope of defendant's request for relief ( see People v Buyund , 205 AD3d 729, 731 [2d Dept 2022]; see generally People v Jackson , 172 Misc 2d 587, 593 [Sup Ct, NY County 1997], affd 266 AD2d 163 [1st Dept 1999], lv denied 94 NY2d 921 [2000]; compare People v Brown , 186 AD3d 1236, 1238 [2d Dept 2020]).

CPL 440.10 provides the remedy for vacating a guilty plea and the resulting sentence.

People v. Brown · filed 2007-04-10

We note that although the defendant’s July 30, 2003 pro se motion purportedly was made pursuant to CPL 440.20, the relief he seeks, i.e., vacatur of his October 7, 2002 plea and his May 21, 2003 sentence, is clearly allowable only pursuant to CPL 440.10 (cf. CPL 440.20 [4]), and we have accordingly determined it thereunder.

Section 440.10(1) specifies grounds for vacating a judgment; subdivision (4) governs dismissal of the accusatory instrument or an order for a new trial when vacatur is granted.

Long v. State of New York · filed 2006-07-05(1)

As an initial matter, the grounds specified in CPL 440.10 (1) apply solely to the vacatur of a judgment. When granting a motion to vacate, a court dismisses the accusatory instrument (or orders a new trial) pursuant to a different subdivision — CPL 440.10 (4).

Section 440.10(4) permits a court granting a motion to vacate a judgment to order resentencing before a different judge when that remedy is appropriate.

People v. Palumbo · filed 1997-02-27(4)

CPL 440.10 (4) permits a court, upon granting a motion to vacate a judgment,* to "take such other action as is appropriate in the circumstances.” ... The court finds that in this case the appropriate remedy where no breach of the promise has occurred and where the sentencing promise can be fulfilled is resentence before a different Judge or Justice.

Section 440.10 permits a court to deny a motion to vacate a conviction without a hearing when the record and the defendant’s submissions are sufficient to decide it.

People v. Williams · filed 1997-03-06

Here, since we agree with Supreme Court that defendant’s motion can be decided on the record and defendant’s submissions, we find that the court properly denied the motion without a hearing (see, People v Cooks, 67 NY2d 100; People v Morgan, 135 AD2d 912).

CPL 440.10 permits denial of a motion to vacate without a hearing when allegations of coercion are unsupported and conclusory.

People v. Goncalves · filed 1997-05-30

Further, in light of the unsupported and conclusory allegations of defendant that he was coerced into pleading guilty, the court properly denied his CPL 440.10 motion without a hearing (see, People v Smith, 227 AD2d 987, lv denied 88 NY2d 995; People v Mills, 194 AD2d 1016, lv denied 82 NY2d 899).

A court may deny a CPL 440.10 motion without a hearing when the recanting witness affidavits supporting it are unworthy of belief.

People v. Bermudez · filed 1997-10-23

The trial court’s denial, without a hearing, of defendant’s motion to vacate the judgment on grounds of newly discovered evidence and various alleged police and prosecutorial improprieties was proper. The motion was based entirely on the affidavits of recanting witnesses, which the court properly rejected, relying on the inherent unreliability of recantations (People v Shilitano, 218 NY 161, 170), as well as the highly suspicious circumstances, viewed in context of events at the trial, under which these recantations occurred.

A court need not hold a hearing on a CPL 440.10 motion when it has sufficient facts to make an informed decision on the merits.

People v. Miles · filed 2002-09-24

Defendant’s CPL 440.10 motion did not warrant a hearing since the court had sufficient facts before it to make an informed decision on the merits (see People v Satterfield, 66 NY2d 796).

A trial court has discretion to deny a Section 440.10 motion without a hearing when the motion offers only bare factual allegations.

People v. Murray · filed 2006-01-19

Finally, addressing defendant’s contention that it was error to deny his CPL 440.10 motion without a hearing, it is well settled that such determination is discretionary with the trial court. Inasmuch as defendant’s motion did not expressly raise the issues of ineffective assistance or innocence, instead alleging only bare factual allegations in support of the motion, we find no error (see People v Beverly, 5 AD3d 862, 865 [2004], lv denied 2 NY3d 796 [2004]).

On a motion under Section 440.10, both parties may be given an opportunity to make further submissions for the motion court’s consideration.

People v. Hansen · filed 2006-05-30

Based on our review of the trial record and the submissions on defendant’s motion alleging ineffective assistance of counsel, we conclude that under the circumstances presented, both parties should have the opportunity to make further submissions pursuant to CPL 440.10 for consideration by the motion court, which may address, among other issues, the reason trial counsel refrained from moving to suppress physical evidence.

Section 440.10 requires a hearing when an ineffective-assistance claim concerning an unfiled alibi notice raises factual questions that cannot be resolved on the record.

People v. Flagg · filed 2006-06-29

However, we agree with defendant that the portion of his second CPL 440.10 motion which alleged that counsel was ineffective in failing to timely file a notice of alibi should not have been summarily denied without a hearing (see generally CPL 250.20 [1]; People v Milazo, 18 AD3d 1068, 1069-1070 [2005]).

A defendant is not entitled to a hearing on a CPL 440.10 motion based on a request for DNA testing when he used the absence of DNA evidence tactically at trial.

People v. Lozada · filed 2007-06-21

Defendant’s final assertion that County Court should have held a hearing on his CPL 440.10 motion due to his request for DNA testing lacks merit because the absence of DNA evidence was used tactically by him at trial.

A CPL 440.10 motion may be denied without a hearing when the supporting affidavits do not set forth sufficient facts to entitle the defendant to one.

People v. Ellis · filed 2008-07-10

Turning to defendant’s CPL 440.10 motion premised on the ineffective assistance of counsel, we find no error in County Court’s denial of the motion without a hearing. ... Moreover, the affidavits submitted in support of the motion do not set forth sufficient facts entitling defendant to a hearing (see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Harris, 131 AD2d 142, 144 [1987]).

Section 440.10 requires a hearing when a motion to vacate a judgment raises issues of fact.

People v. Liggins · filed 2008-11-21

We conclude that defendant thereby raised issues of fact in support of his motion and thus that the court erred in denying his motion without conducting a hearing.

A motion under CPL 440.10 requires allegations raising a triable issue of fact to obtain a hearing; conclusory allegations are insufficient.

People v. Waymon · filed 2009-08-25

Mere conclusory allegations of ultimate facts are insufficient to warrant a hearing (see People v Brown, 56 NY2d 242, 246-247 [1982]; see also People v Broxton, 34 AD3d 491, 492 [2006]).

Section 440.10 requires a hearing before a court decides a motion supported by affidavits indicating that counsel’s deportation advice may have made a guilty plea involuntary.

People v. Williams · filed 2010-04-22

Under such circumstances, County Court should have conducted a hearing prior to deciding defendant’s CPL 440.10 motion (see People v Marshall, 66 AD3d at 1116; People v McKenzie, 4 AD3d 437, 438-440 [2004]; compare People v Argueta, 46 AD3d 46, 51 [2007], lv dismissed 10 NY3d 761 [2008]).

A CPL 440.10 motion alleging juror misconduct may be denied without a hearing when the supporting affidavits contain only hearsay allegations.

People v. Giuca · filed 2010-11-03

The Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ground of juror misconduct, which judgment was previously affirmed on appeal to this Court (see People v Giuca, 58 AD3d 750 [2009]).

Section 440.10 permits a hearing when material facts about a motion to vacate cannot be resolved from the record.

People v. Kearney · filed 2010-11-10

We reverse and remit for a hearing. Preliminarily, contrary to the People’s assertion, we do not find that the issues raised here are identical to those raised on defendant’s direct appeal or that they involve matters adequately reflected in the appellate record. ... Accordingly, the matter must be remitted for a hearing where proof relevant to the issue can be presented (see People v Di Donato, 263 AD2d at 679; see generally People v Williams, 72 AD3d 1347, 1348 [2010]).

Section 440.10 permits denial of a motion to vacate without a hearing or appointed psychiatric expert when the defendant’s submissions do not sufficiently raise an issue of trial incompetence.

People v. Fleming · filed 2010-12-28

The court properly denied defendant’s CPL 440.10 motion, without conducting a hearing or appointing a defense psychiatric expert.

A CPL 440.10 motion may be denied without a hearing when the record and submissions are sufficient to decide it and no factual dispute requires a hearing.

People v. Del · filed 2011-02-10

The court properly exercised its discretion (see People v Samandarov, 13 NY3d 433, 439-440 [2009]) in denying the CPL 440.10 motion without holding a hearing. The trial record and the parties’ submissions were sufficient to decide the motion, and there was no factual dispute requiring a hearing (see People v Satterfield, 66 NY2d 796, 799-800 [1985]).

A CPL 440.10 motion may be denied without a hearing when the defendant’s self-serving affidavit does not sufficiently show that he would have accepted a plea offer.

People v. Lane · filed 2011-04-07

In our view, his self-serving affidavit is insufficient in that regard and, thus, County Court did not abuse its discretion in denying his CPL article 440 motion without a hearing under the circumstances of this case (see People v Fernandez, 5 NY3d 813, 814 [2005]).

A CPL 440.10 motion alleging that counsel failed to investigate the defendant’s criminal history requires a hearing to determine the ineffective assistance claim.

People v. Baker · filed 2011-06-14

Further, a hearing was required to determine the merits of the defendant’s contention that he did not receive the effective assistance of counsel because trial counsel did not properly investigate his criminal history (see People v Mobley, 59 AD3d 741 [2009]; People v Garcia, 19 AD3d 17 [2005]; People v Perron, 273 AD2d 549 [2000]).

CPL 440.10 permits a court to deny a motion to vacate without a hearing when the alleged disclosure violations could not have affected the verdict.

People v. Saxton · filed 2012-03-29

As for defendant’s CPL 440.10 motion, we cannot say that County Court abused its discretion in denying' this application without a hearing.

A CPL 440.10 motion warrants a hearing when the defendant sufficiently establishes deficient counsel and prejudice from counsel’s failure to advise of a plea’s deportation consequences.

People v. Rajpaul · filed 2012-11-21

In light of the foregoing, County Court should have held a hearing on the CPL 440.10 motion (see People v Oouch, 97 AD3d at 906; People v Reynoso, 88 AD3d 1162, 1164 [2011]; People v Marshall, 66 AD3d 1115, 1116 [2009]).

Section 440.10 does not require a hearing on every motion; the trial court has discretion to decide whether a hearing is necessary.

People v. Zeh · filed 2012-12-20

A hearing is not required on every motion brought pursuant to CPL 440.10, and it is within the trial court’s sound discretion to determine whether a hearing is necessary in a particular case (see People v Snyder, 91 AD3d 1206, 1214 [2012], lv denied 19 NY3d 968 [2012]).

A hearing is not required for every CPL 440.10 motion; a court may decide one without a hearing after considering extensive written submissions.

People v. Sheppard · filed 2013-06-20

However, a hearing is not required in every instance and here, particularly considering the extensive written submissions by the parties, we do not find that County Court abused its discretion (see People v Samandarov, 13 NY3d 433, 436 [2009]; People v Dozier, 94 AD3d 1226,1229 [2012], lv denied 19 NY3d 996 [2012]; People v Snyder, 91 AD3d 1206, 1214 [2012], lv denied 19 NY3d 968 [2012], cert denied 568 US —, 133 S Ct 791 [2012]).

A defendant whose mental illness and medication may have prevented a knowing and voluntary guilty plea is entitled to a hearing on a Section 440.10 motion when further evidence is needed to resolve that issue.

People v. Hennessey · filed 2013-11-27(1)(e)

Accordingly, we find that County Court erred in denying defendant’s CPL 440.10 motion without a hearing, and conclude that this matter must be remitted to County Court for this purpose.

Section 440.10 does not make challenges to a prosecutor’s opening statement or summation cognizable on a motion to vacate.

People v. Carmichael · filed 2014-06-24

Defendant’s challenges to the prosecutor’s opening statement and summation are not cognizable by way of a CPL 440.10 motion, and are without merit in any event.

A court may deny a CPL 440.10 motion without a hearing when the defendant fails to make a prima facie showing of actual innocence.

People v. Woods · filed 2014-08-13

Here, the defendant failed to make a prima facie showing of actual innocence sufficient to warrant a hearing ... Accordingly, the Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 to vacate his judgment of conviction.

Section 440.10 does not authorize vacating a judgment because a defendant files a notice of appeal under a plea agreement’s waiver clause.

People v. Santiago · filed 2014-07-24

This clause is unenforceable because there is no statutory authority to vacate a judgment under these circumstances (CPL 440.10; People v Moquin, 77 NY2d 449, 452 [1991]; see also Matter of Kisloff v Covington, 73 NY2d 445, 450 [1989] [confining the court’s authority to vacate a plea or sentence after judgment has been entered over the defendant’s objection to clerical errors and fraud]).

A defendant seeking a hearing on a motion to vacate based on facts outside the trial record must show that those facts are material and would entitle the defendant to relief if established.

PeoplevMosley · filed 2014-10-16

With respect to the non-record facts set forth in his CPL article 440 motion, defendant must show that they are material and, if established, they would entitle him to relief (see People v Satterfield, 66 NY2d 796, 799 [1985]).

A court may deny a CPL 440.10 motion without a hearing when the defendant’s allegations are conclusory, self-contradictory, and unsupported.

People v. Medina · filed 2015-06-11

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]). Defendant’s assertion that his attorney misadvised him that his guilty plea would not lead to deportation is conclusory, self-contradictory, and unsupported by any information from the attorney or any other evidence (see People v Melo-Cordero, 123 AD3d 595 [1st Dept 2014]; People v Simpson, 120 AD3d 412 [1st Dept 2014], lv denied 24 NY3d 1046 [2014]).

A court may deny a § 440.10 ineffective-assistance motion without a hearing when deceased trial counsel was the only person who could provide material information not already before the motion court.

LEONARD, RICHARD M., PEOPLE v · filed 2015-06-19

Addressing first appeal No. 2, we conclude that County Court properly denied without a hearing that part of defendant’s CPL 440.10 motion alleging that he was denied effective assistance of counsel “inasmuch as trial counsel, the only person who could have provided any material information not already before the motion court, was deceased” (People v Abuhamra, 107 AD3d 1630, 1630, lv denied 22 NY3d 1038 [internal quotation marks omitted]).

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

People v. Olivero · filed 2015-07-09

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]).

Section 440.10 permits denial of a motion to vacate without a hearing when the defendant’s allegations fail to raise a triable issue of fact.

People v. Diallo · filed 2015-10-28

To obtain a hearing on a motion to vacate a judgment of conviction, “it is the defendant’s burden as movant to come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction” (People v Waymon, 65 AD3d 708, 709 [2009]). Here, all of the defendant’s allegations are either based on unsubstantiated conclusory allegations, on speculation, or on self-serving statements that are not borne out by the record. ... Therefore, his motion pursuant to CPL 440.10 was properly denied without a hearing (see People v Satterfield, 66 NY2d 796, 799 [1985]; People v Brown, 56 NY2d 242, 246-247 [1982]; People v Townsend, 120 AD3d 595 [2014]).

A CPL 440.10 motion requires a hearing when sworn allegations of ineffective assistance depend on facts outside the record that cannot be resolved from the existing record.

People v. Rapp · filed 2015-11-12

However, we do agree with defendant's contention that remittal to County Court is required inasmuch as his CPL 440.10 motion was improperly denied without a hearing, as defendant's claims of ineffective assistance of counsel are based upon matters not apparent on the face of the record (compare CPL 440.30; People v Satterfield 66 NY2d 796, 799 [1985]).

A defendant seeking a hearing on a Section 440.10 motion must allege facts sufficient to challenge the presumed validity of the conviction; unsupported claims may be denied without a hearing.

People v. Vasquez · filed 2015-12-02

Here, in the absence of any evidence supporting the claims set forth in the defendant’s affidavit regarding alleged plea offers about which defense counsel purportedly failed to inform him or defense counsel’s rejection of his request to call an expert medical witness, the Supreme Court properly denied, without a hearing, the defendant’s motion pursuant to CPL 440.10 (see CPL 440.30 [4] [d] [i]; People v Brown, 56 NY2d at 246-247; People v Session, 34 NY2d at 256; People v Waymon, 65 AD3d at 709).

A court may deny a CPL 440.10 motion without a hearing when it determines that a hearing is unnecessary.

SIMCOE, THOMAS B., PEOPLE v · filed 2016-02-11

“A postjudgment motion brought pursuant to [CPL 440.10] 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” (People v Snyder, 91 AD3d 1206, 1214, lv denied 19 NY3d 968, cert denied ___ US ___, 133 S Ct 791). Here, for reasons stated in the court’s decision, we conclude that the court did not abuse its discretion in denying defendant’s motion without a hearing (see generally People v Blackman, 90 AD3d 1304, 1311-1312, lv denied 19 NY3d 971).

A CPL 440.10 motion cannot be used to raise a claim that the plea court gave misleading advice about the plea’s immigration consequences.

People v. Shabaan · filed 2016-04-05

Defendant’s claim that the court gave misleading advice concerning the immigration consequences of the plea (see People v Peque, 22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]) is not cognizable on a CPL article 440 motion (see People v Llibre, 125 AD3d 422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015]).

A court should hold a hearing on a CPL 440.10 motion when the defendant’s allegations of ineffective assistance of counsel warrant factual inquiry.

People v. Sanchez · filed 2017-05-25

The court improvidently exercised its discretion in denying without a hearing defendant’s CPL 440.10 motion alleging ineffective assistance of counsel for failure to render accurate advice on the immigration consequences of pleading guilty to a felony (see People v Picca, 97 AD3d 170 [2d Dept 2012], citing inter alia People v McDonald, 1 NY3d 109 [2003]), without a hearing.

Section 440.10 does not permit a Peque claim seeking to vacate a conviction because the plea court failed to warn of possible deportation.

People v. Mebuin · filed 2017-12-28

Defendant also argues that his conviction should be reversed on Peque grounds. We reject that argument. We have previously held that a Peque claim is not cognizable on a CPL 440 motion and that Peque does not apply retroactively to a conviction that became final before it was decided ( People v Shabaan , 138 AD3d 407 [1st Dept 2016], lv denied 27 NY3d 1155 [2016]).

A court may deny a CPL 440.10 motion without a hearing when the motion submissions and trial record allow it to resolve the claim.

People v. Armond · filed 2017-12-28

The court providently 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]). Based on the submissions on the motion, as well as the trial record, we conclude that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

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. Byrd · filed 2019-07-18

"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 [2017] [citations omitted]; see CPL 440.30 [5]; People v Pabon , 157 AD3d 1057, 1058 [*2][2018], lv denied 31 NY3d 986 [2018]).

A court may deny a CPL 440.10 motion without a hearing when a hearing would serve no useful purpose.

People v. Gamble · filed 2020-01-28

The court properly denied, without a hearing, defendant pro se's CPL 440.10 motion and appellate counsel's supplemental CPL 440.10 motion asserting ineffective assistance of counsel. ... The court also providently exercised its discretion in determining that a hearing would serve no useful purpose, particularly in light of defendant's detailed submissions regarding his interactions with pretrial counsel, who was deceased.

Section 440.10(4) requires a court granting a motion to vacate the judgment before choosing a further remedy.

People v. Brown · filed 2020-09-02(4)

Contrary to the Supreme Court's determination, the plain language of CPL 440.10(4) requires that, upon a finding that a defendant's CPL 440 motion is meritorious, a court must, in the first instance (absent the exceptions in subdivisions five or six of CPL 440.10 which are not relevant here), vacate the judgment ( see People v Brett W. , 144 AD3d 1314, 1317; see generally People v Baker , 116 AD3d 1058, 1059), and upon so doing, must then select one of three options: (1) "dismiss the accusatory instrument," (2) "order a new trial," or (3) "take such other action as is appropriate in the circumstances" (CPL 440.10[4]).

A CPL 440.10 motion may be denied without a hearing when the defendant offers only unsubstantiated allegations that trial counsel's affidavit contradicts.

People v. Ferguson · filed 2021-04-29

In support of his claim, defendant offered nothing more than his unsubstantiated and self-serving allegations, which were countered by an affidavit from defendant's trial counsel ( see People v Allen , 174 AD3d 815, 816 [2019], lvs denied 34 NY3d 978, 981 [2019]; compare People v Mobley , 59 AD3d 741, 742 [2009], lv denied 12 NY3d 856 [2009]; People [*7]v Perron , 273 AD2d 549, 550 [2000]). Under such circumstances, County Court did not abuse its discretion in denying defendant's CPL 440.10 motion without a hearing.

A court may deny a motion to vacate without a hearing when the defendant's self-serving claims are contradicted by the record.

People v. Beverly · filed 2021-07-08

Because defendant's proof amounted to self-serving claims that were belied by the record, County Court did not err in denying defendant's motion without a hearing ( see People v Guynup , 159 AD3d 1223, 1225-1226 [2018], lv denied 31 NY3d 1082 [2018]; People v Lagas , 111 AD3d 1026, 1027 [2013], lvs denied 22 NY3d 1196, 1200 [2014]; 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 unless the submissions show material nonrecord facts that would entitle the defendant to relief.

People v. Gilmore · filed 2021-12-09

With respect to the denial of defendant's CPL 440.10 motions, Supreme Court did not err in denying his motions without a hearing. "[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 Brandon , 133 AD3d 901, 903 [2015], lvs denied 27 NY3d 992, 1000 [2016], quoting People v Satterfield , 66 NY2d 796, 799 [1985]; see People v Beverly , 196 AD3d 864, 865 [2021], lv denied 37 NY3d 1058 [2021]).

Section 440.10 requires a hearing on a motion to vacate only when the submitted nonrecord facts are material and would entitle the defendant to relief.

People v. Podeswa · filed 2022-05-12

[o]n 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 defendant's self-serving assertion that counsel knew of proposed defenses is insufficient to warrant a hearing on a motion to vacate when the records contradict those defenses.

People v. Shabazz · filed 2022-12-01

In the end, defendant's assertions that he informed counsel about these potential defenses amount to self-serving claims and are insufficient to merit a hearing ( see People v See , 206 AD3d 1153, 1155-1156 [3d Dept 2022]; People v Newhall , 206 AD3d 1144, 1152-1153 [3d Dept 2022], lv denied ___ NY3d ___ [Oct. 28, 2022]).

A court may deny a CPL 440.10 motion without a hearing when the defendant fails to expand the record to support an ineffective assistance claim.

People v. Gay · filed 2022-12-20

The court providently exercised its discretion in denying defendant's CPL 440.10 motion claiming ineffective assistance of counsel without granting a hearing ( see People v Samandarov , 13 NY3d 433, 439-440 [2009]). Initially, we note that although the primary purpose of such a motion is to expand the record, defendant did not do so, by way of attorney affirmation or otherwise, with regard to hearing counsel's failure to raise a Fourth Amendment issue or trial counsel's failure to cross-examine a witness about his description of defendant.

A court may resolve ineffective assistance claims raised in a CPL 440.10 motion without a hearing when doing so is within its discretion.

People v. Burton · filed 2023-04-13

Further, we find that County Court did not abuse its discretion in resolving defendant's ineffective assistance contentions contained in his CPL article 440 motion without a hearing ( see People v Hardie , 211 AD3d 1418, 1421 [3d Dept 2022]; People v Gonyea , 211 AD3d at 1106; People v Byrd , 174 AD3d 1133, 1134-1135 [3d Dept 2019], lv denied 34 NY3d 979 [2019]).

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

People v. Quiles · filed 2023-06-29

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]; People v Samandarov , 13 NY3d 433, 439-440 [2009]).

Section 440.10 requires a hearing on a motion to vacate only when the submissions identify material nonrecord facts that would entitle the defendant to relief; a court may deny a hearing when the defendant’s claims are contradicted by the record or lack other support.

People v. Dunbar · filed 2023-07-13

"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. Furthermore, a court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" ... Accordingly, County Court did not abuse its discretion in denying defendant's motion to vacate without a hearing.

Section 440.10 requires a hearing when a defendant's submissions raise material facts outside the record that, if established, would entitle the defendant to relief.

People v. Marcellus · filed 2024-01-18

"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" ( People v Baez-Arias , 203 AD3d 1409, 1410 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 NY3d 1132 [2022]; see People v Miles , 205 AD3d 1222, 1224 [3d Dept 2022], lv denied 38 NY3d 1189 [2022]).

A CPL 440.10 motion warrants a hearing when material nonrecord facts, if established, would entitle the defendant to relief.

People v. Philippe · filed 2024-06-06

As relevant here, on a motion to vacate a judgment of conviction under CPL 440.10, "to demonstrate the existence of questions of fact requiring a hearing, a defendant is obliged to show that the nonrecord facts sought to be established are material and would entitle him or her to relief" ( People v Beverly , 196 AD3d 864, 865 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], lv denied 37 NY3d 1058 [2021]; see People v Baez-Arias , 203 AD3d at 1410).

Section 440.10 permits a court to deny a motion without a hearing when the defendant's claims are contradicted by the record or lack supporting evidence.

People v. Jamieson · filed 2025-01-06

Nor is a hearing invariably necessary when a defendant moves under CPL § 440.10. ... So, a conviction court may deny the motion without a hearing, if the motion is based upon a defendant's self-serving claims that are contradicted by the record, or unsupported by other evidence. ... As such, pursuant to Newell , the Court rules on the application, sans hearing. This is not because there was no request for a hearing, but rather, because under Miles , this Court has sole discretion over the application ( See Bowman ), and it is apparent the application is based upon self-serving statements, made well after the fact.

A CPL 440.10 motion may be denied without a hearing when there are no questions of fact requiring one.

People v. Gibson · filed 2025-07-17

We also reject defendant's alternative argument that County Court abused its discretion in denying his 440.10 motion without a hearing, as there are no questions of fact which would require a hearing ( see People v Dorvil , 234 AD3d at 1118; People v Hardie , 211 AD3d 1418, 1420 [3d Dept 2022], lv denied 39 NY3d 1111 [2023]).

A court may deny a CPL 440.10 motion without a hearing when the defendant fails to provide nonrecord facts that could entitle him to relief.

People v. Lerario · filed 2026-02-26

Accordingly, defendant received meaningful representation and, given his failure to raise any nonrecord support entitling him to a hearing on his CPL 440.10 motion, County Court did not abuse its discretion in denying said motion without a hearing ( see People v Cole , 217 AD3d at 1185-1188; People v White-Span , 182 AD3d 909, 916 [3d Dept 2020], [*6] lv denied 35 NY3d 1071 [2020]).

Section 440.10(1)(b) provides a motion to vacate the judgment as the remedy for a claimed violation of a plea agreement.

People v. Cook · filed 1997-03-13(1)(b)

While the proper remedy to challenge a violation of a plea agreement is for defendant to make a motion to vacate the judgment of conviction pursuant to CPL article 440 {see, CPL 440.10 [1] [b]; cf., People v Auslander, 169 AD2d 853), were we to consider such claim we would reject it.

Section 440.10 permits a motion to vacate a judgment at any time after the judgment is entered.

People v. Damon · filed 2026-06-18(1)(a)

We note, however, that such a motion may be made "[a]t any time after the entry of a judgment" (CPL 440.10 [1] [a]) and defendant has not demonstrated an inability to file a motion.

Section 440.10(1) permits a defendant to move to vacate a judgment at any time after its entry, with no statutory filing deadline.

Moncayo v. Superintendent Green Haven Correctional Facility · filed 2025-08-28(1)

Moreover, Petitioner may still file his Section 440 motion at any time because there is no statutory time limit.

A § 440.10 motion may be brought at any time after judgment; it has no filing deadline.

Bryant v. Superintendent of Elmira Correctional Facility · filed 2025-06-05

But a CPL §440.10 motion “may be brought at any time after the entry of judgment,” so there is no time period after which it expires or becomes unavailable.

Section 440.10(1) permits a motion to vacate a judgment at any time after judgment is entered.

Gomez v. Miller · filed 2021-11-22(1)

There is no time limit within which an individual must bring a section 440.10 motion, and the statute specifically states that a motion to vacate may be made "[a]t any time after the entry of a judgment[.]" CPL § 440.10(1).

A motion under § 440.10(1) may be made at any time after judgment is entered.

Desjardins v. Racette · filed 2021-08-17(1)

Here, as respondent agrees, petitioner still has available to him the procedure of a motion for post-conviction relief under §440.10(1), which may be made “[a]t any time after the entry of a judgment.” Id.

A motion under CPL 440.10 has no filing deadline and may be made at any time after entry of judgment.

People v. Bennett · filed 2010-05-26

A motion under CPL 440.10 does not have a time limitation and may be initiated at any time after entry of judgment (see People v Corso, 40 NY2d 578 [1976]).

CPL 440.10 sets no general deadline or diligence requirement for a claim that a guilty plea was involuntary because the defendant was not told about postrelease supervision.

People v. Hill · filed 2007-01-30

That is, no provision of CPL 440.10 or CPL 440.30 requires that a Catu claim be made within a particular time period or even that it be prosecuted diligently.

A CPL 440.10 motion to vacate a judgment is premature before sentencing because the judgment is not complete until sentence is imposed and entered.

People v. Burt · filed 1998-01-29

Notably, the CPL 440.10 motion was premature because it was made after the jury’s verdict but before sentencing; County Court’s denial of the motion also occurred before sentencing. The proper timing for such a motion is upon the completion of the judgment, which does not occur “until [the] sentence is imposed and entered” (People v Burdash, 102 AD2d 948, 949).

Section 440.10(1) does not permit a motion to vacate a judgment before sentencing.

People v. Bailey · filed 2000-09-28(1)

Moreover, the motion was premature because it was made prior to sentencing (CPL 440.10 [1]).

Section 440.10 allows a motion to vacate a judgment at any time after entry of judgment, without a filing deadline.

People v. Ping Cheung · filed 2000-10-30

Initially, the defendant’s claims are not time barred. Motions under CPL 440.10 and 440.20 have no time limitations and may be initiated at any time after the entry of judgment.

Section 440.10 is unavailable before judgment has been entered.

People v. Huang · filed 2002-12-24

However, at the time defendant made this motion, judgment had not yet been entered on the sentence, rendering CPL 440.10 inapplicable by its terms.

Section 440.10(1) permits a motion to vacate a judgment after the defendant has completed the sentence.

People v. Pichardo · filed 2003-12-02(1)

It would, for example, be wholly arbitrary to permit a defendant with days or weeks remaining on a sentence to seek vacatur of his conviction, but to deny that remedy to a defendant whose sentence had just been completed. CPL 440.10 (1) expressly permits the filing of a motion to vacate " [a]t any time after the entry of a judgment" (emphasis added).

Section 440.10(1) does not permit a motion to vacate judgment before sentencing.

People v. Williams · filed 2006-12-28(1)

Although defendant’s application was made pursuant to CPL 440.10 and premature (see CPL 440.10 [1]), County Court considered it on the merits prior to sentencing, and we will review it as having been made pursuant to CPL 220.60 (3).

Section 440.10 imposes no time limit on filing a motion to vacate a judgment.

People v. Taylor · filed 2014-04-30

The County Court erred in denying the motion on the ground that the defendant unduly delayed making the allegations of Brady and Rosario violations, as “[t]here is no time limit on the filing of CPL 440.10 motions” (People v Jackson, 78 NY2d 638, 646 [1991]).

Section 440.10(1) permits a motion to vacate a judgment only after the judgment has been entered.

Dominique v. Artus · filed 2014-06-17(1)

Furthermore, a review of the Cotto factors and New York state law confirms that § 440.10(l)’s requirement that such motion must be made “after the entry of a judgment” was adequate.

Section 440.10 has no time limit for a motion challenging a conviction on constitutional grounds.

Sampson v. Miller · filed 2020-04-15

There is “no time limitation” to bringing a Section 440.10 motion challenging conviction on constitutional grounds.

Section 440.10(1) allows a defendant to move to vacate a judgment at any time after its entry.

O'Neal v. The People of New York State · filed 2020-06-05(1)

Because there is no time limit to filing a motion under N.Y. Crim. Proc. Law § 440.10, O’Neal may still seek review of his ineffective assistance of counsel claims in state court.

Section 440.10 permits a motion to vacate a judgment at any time after the judgment is entered.

Rios v. Miller · filed 2020-07-15(1)

Indeed, such action, which is not time limited, remains available.

A CPL 440.10 motion made before sentencing is premature.

People v. Campbell · filed 2021-07-08

Although defendant's application was made pursuant to CPL 440.10 and was therefore premature, to the extent that this issue was raised before sentencing and County Court rendered a determination on the merits, we will address the issue as having been raised as part of defendant's CPL 330.30 motion ( cf. People v Williams , 35 AD3d 1085, 1086 n 1 [2006]).

Section 440.10(1) permits a motion to vacate a conviction at any time after entry of the judgment.

Chase v. LaManna · filed 2022-09-01(1)

Further, because a § 440.10 motion can be filed “[a]t any time after the entry of” the judgment of conviction, N.Y. Crim. Proc. Law § 4401.10(1), Petitioner, prior to the expiration of the applicable statute of limitations, “could have pursued any unexhausted any claims not properly raised on direct appeal at any time, and her ignorance of the law or state legal procedures does not constitute good cause.” Trappler, 2021 WL 3773650, at * 2 (citing cases).

Section 440.10(1) permits a motion to vacate a judgment at any time after the judgment is entered.

Bethany v. Noeth · filed 2023-04-24(1)

Since there is no time limitation on filing a motion to vacate, see N.Y. Crim. Proc. Law § 440.10(1) (permitting a motion to vacate “[a]t any time after entry of a judgment”), Bethany could not have been reasonably confused about the timeliness of any future C.P.L. § 440.10 motion.

Section 440.10 sets no time limit for filing a motion to vacate a conviction.

Williams v. Montagari · filed 2023-08-25

Since “there is no time limit to filing a motion under CPL § 440.10,” Petitioner’s ineffective assistance of counsel claim is not procedurally defaulted because he could still present it in state court.

Section 440.10(1) permits a motion to vacate a judgment at any time after the judgment is entered.

Bonneau v. LaManna · filed 2023-08-27(1)

Because a § 440.10 motion may be brought “[a]t any time after the entry of a judgment,” N.Y. Crim. Proc. Law § 440.10(1), Petitioner may still fairly present both claims raised in the Petition to the state courts.

Section 440.10(1) sets no filing deadline for a motion to vacate judgment.

Guerriero v. Montagari · filed 2025-01-16(1)

New York Criminal Procedure Law § 440.10(1) reflects the absence of a filing deadline.

A CPL 440.10 motion to vacate a judgment is premature if made before sentencing.

People v. Coleman · filed 2025-12-23(1)

With respect to appeal No. 2, we note, preliminarily, that defendant was granted leave to appeal pursuant to CPL 460.15 in the interest of justice and judicial economy notwithstanding that the CPL 440.10 motion was prematurely made prior to sentencing ( see People v Burt , 246 AD2d 919, 923 [3d Dept 1998], lv denied 91 NY2d 1005 [1998]; cf. CPL 440.10 [1]; People v Spirles , 294 AD2d 810, 811 [4th Dept 2002], lv denied 98 NY2d 713 [2002], reconsideration denied 99 NY2d 540 [2002]).

Section 440.10 provides no discovery procedure for preparing a motion to vacate a judgment.

People v. Torres · filed 2000-08-09

Assuming arguendo that this motion is an application for discovery in furtherance of or in anticipation of a CPL 440.10 motion, the relief sought would nonetheless be denied. ... There are no discovery provisions under the Criminal Procedure Law for motions under CPL article 440. Courts cannot grant discovery where no statutory basis exists.

Section 440.10(1)(g) requires a verdict of guilt after trial for vacatur on a claim of actual innocence, so a guilty plea forecloses that ground.

People v. Brown · filed 2023-10-12(1)(g)

To the extent that defendant's motion to vacate is predicated upon a claim of actual innocence, "we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial and defendant's plea of guilty therefore forecloses relief upon this ground" ( People v Lamb , 162 AD3d 1395, 1397 [3d Dept 2018] [internal quotation marks, emphasis, brackets and citations omitted], lv denied 32 NY3d 1112 [2018]; accord People v Hinds , 217 AD3d 1138, 1141 [3d Dept 2023], lv denied 40 NY3d 951 [2023]; see CPL 440.10 [1] [g]; People v Vittengl , 203 AD3d 1390, 1392 [3d Dept 2022]).

Section 440.10(1)(g) permits vacatur for actual innocence only after a guilty verdict at trial; a guilty plea forecloses relief on that ground.

People v. Crampton · filed 2022-01-06(1)(g)

"To the extent that defendant's motion to vacate is predicated upon his claim of actual innocence, 'we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt[y] after trial and defendant's plea of guilty therefore forecloses relief upon this ground'" [*4]( People v Lamb , 162 AD3d 1395, 1397 [2018], lv denied 32 NY3d 1112 [2018], quoting People v DePerno , 148 AD3d 1463, 1464 [2017] [emphasis and brackets omitted], lv denied 29 NY3d 1030 [2017]; see CPL 440.10 [1] [g]; People v Tiger , 32 NY3d 91, 100-101 [2018]; People v Bhuiyan , 181 AD3d 699, 701 [2020], lv denied 35 NY3d 1064 [2020]).

Section 440.10 (1) (h) does not permit an independent actual innocence claim after a guilty plea.

People v. Tiger · filed 2018-06-14(1)(h)

For the above reasons, where the defendant has been convicted by guilty plea, there is no actual innocence claim cognizable under CPL 440.10 (1) (h).

Section 440.10(1)(h) permits a motion to vacate a conviction based on a freestanding claim of actual innocence because convicting or punishing an innocent person violates the New York State Constitution.

People v. Cole · filed 2003-09-12(1)(h)

Whatever the rubric used, the court finds that the conviction of and/or punishment imposed upon an innocent person violates the New York State Constitution. CPL 440.10 (1) (h) provides for the vacating of a judgment which was obtained in violation of an accused’s constitutional rights.

Section 440.10(1)(h) permits an actual innocence claim, proved by clear and convincing evidence, at least under the circumstances of this case.

People v. Wheeler-Whichard · filed 2009-07-30(1)(h)

However, I am now prepared to rule that, at least under the circumstances of this case, such a claim of actual innocence... may be brought and the standard of proof for determining it is “by clear and convincing evidence.”

Section 440.10(1)(h) warrants a hearing on an actual innocence claim when the defendant makes a prima facie showing of possible merit.

People v. Jones · filed 2014-03-26(1)(h)

As we recognized in Hamilton, a prima facie showing of actual innocence is made out when there is “ ‘ “a sufficient showing of possible merit to warrant a fuller exploration” ’ ” by the court (People v Hamilton, 115 AD3d at 27, quoting Goldblum v Klem, 510 F3d 204, 219 [3d Cir 2007], cert denied 555 US 850 [2008], quoting Bennett v United States, 119 F3d 468, 469 [7th Cir 1997]). Here, the defendant made the requisite prima facie showing.

Section 440.10(1)(h) permits a defendant to raise a claim of actual innocence.

CONWAY, TWAN, PEOPLE v · filed 2014-06-13(1)(h)

Although the court erred in determining that a claim of actual innocence may not properly be raised pursuant to CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d 12, 15), the court properly determined that defendant’s claim of actual innocence was “belied by his admission of guilt during the plea colloquy” (People v Conde, 34 AD3d 1347, 1347; see People v Garner, 86 AD3d 955, 955; see also People v Crawford, 106 AD3d 832, 833, lv denied 21 NY3d 1014).

Section 440.10(1)(h) permits a defendant to seek vacatur based on a freestanding claim of actual innocence.

People v. Jimenez · filed 2016-07-21(1)(h)

We agree with the Second Department that CPL 440.10 (1) (h) embraces a claim of actual innocence.

Section 440.10(1)(h) requires clear and convincing evidence, not presented at trial, of a defendant’s factual innocence to vacate a conviction on that ground.

People v. Velazquez · filed 2016-09-08(1)(h)

To vacate a judgment based on actual innocence pursuant to CPL 440.10 (1) (h), defendant must demonstrate with clear and convincing evidence, which was not presented at trial, his factual innocence, i.e. that he was actually innocent of the crimes for which he was convicted (see People v Hamilton, 115 AD3d 12, 23 [2d Dept 2014]; Bousley v United States, 523 US 614, 623-624 [1998]).

Section 440.10(1)(h) permits a defendant who pleaded guilty to bring a freestanding actual innocence claim.

People v. Tiger · filed 2017-03-01(1)(h)

Accordingly, we now hold that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10 (1) (h).

Section 440.10(1)(h) permits vacatur for actual innocence when the defendant proves factual innocence by clear and convincing evidence.

People v. Maxwell · filed 2017-07-12(1)(h)

Here, at the hearing, the defendant failed to establish by clear and convincing evidence that he did not fire the bullet that struck and killed the victim. Accordingly, the Supreme Court properly held that the defendant’s conviction should not be vacated pursuant to CPL 440.10 (1) (h) based on actual innocence.

A defendant seeking to vacate a conviction based on actual innocence must establish innocence by clear and convincing evidence.

People v. Jones · filed 2017-08-16

The defendant failed to meet his burden of establishing by clear and convincing evidence that he is actually innocent (see generally People v Hamilton, 115 AD3d 12, 27 [2014]).

Section 440.10(1)(h) permits a freestanding actual innocence claim, which requires clear and convincing evidence that the defendant did not commit the crime.

People v. Mosley · filed 2017-11-02(1)(h)

While we recognize that in People v Caldavado (26 NY3d 1034 [2015]) the Court of Appeals opted not to determine whether a freestanding claim of actual innocence is viable (id. at 1037), we concur with the analysis set forth in Hamilton and find that such a claim may be raised pursuant CPL 440.10 (1) (h) (see People v Hamilton, 115 AD3d at 26).

Section 440.10 (1) (h) requires a hearing on an actual innocence claim when the defendant makes a prima facie showing supported by competent evidence.

People v. Pottinger · filed 2017-12-22(1)(h)

Additionally, we conclude that County Court erred in denying defendant’s motion without holding a hearing to address defendant’s claim that the judgment of conviction should be vacated pursuant to CPL 440.10 (1) (h) based on his actual innocence of the crimes of which he was convicted (see People v Hamilton, 115 AD3d 12, 15 [2d Dept 2014]). We conclude that defendant made a prima facie showing of actual innocence sufficient to warrant a hearing on the merits (see Hamilton, 115 AD3d at 27).

CPL 440.10 provides the motion for raising a claim of actual innocence that is not reviewable on direct appeal.

People v. Ousmane · filed 2020-05-13

The defendant's remaining contention, raised in his pro se supplemental brief, that the judgment should be vacated on the basis that he is actually innocent is not reviewable on direct appeal from the judgment. Rather, such a claim of actual innocence should be raised in a CPL 440.10 motion ( see e.g. People v Hamilton , 115 AD3d 12, 15).

CPL 440.10 (1) (h) permits a freestanding claim of actual innocence.

People v. Lanier · filed 2021-02-18(1)(h)

Contrary to the People's assertion, defendant may raise a freestanding claim of actual innocence under CPL 440.10 (1) (h) ( see People v Mosley , 155 AD3d 1124, 1125 [2017], lv denied 31 NY3d 985 [2018]).

Section 440.10(1)(h) requires clear and convincing evidence of actual innocence; evidence that merely casts doubt on guilt is insufficient.

People v. Davis · filed 2021-04-21(1)(h)

Contrary to the defendant's contention, the Supreme Court properly determined that the defendant failed to demonstrate his actual innocence by clear and convincing evidence ( see CPL 440.10[1][h]; People v Fraser , 165 AD3d 697, 699; People v Maxwell , 152 AD3d 622, 622).

Section 440.10(1)(h) permits summary rejection of an actual innocence claim when the defendant's evidence does not make a prima facie showing of possible merit warranting further exploration.

People v. Ramos · filed 2021-05-19(1)(h)

Here, while providing various means of impeaching the complainant's credibility, the evidence proffered by the defendant in support of the 440 motion did not constitute a sufficient showing of possible merit to warrant further exploration.

Section 440.10 requires a prima facie showing of possible merit before a defendant receives a hearing on an actual innocence claim.

People v. Viera · filed 2021-12-01

The Supreme Court providently exercised its discretion in summarily denying that branch of the defendant's renewed motion which was pursuant to CPL 440.10 to vacate his judgment of conviction based on actual innocence. ... "A prima facie showing of actual innocence is made out when there is 'a sufficient showing of possible merit to warrant a fuller exploration' by the court" ( People v Hamilton , 115 AD3d at 27, quoting Goldblum v Klem , 510 F3d 204, 219 [3d Cir]; see People v Jones , 115 AD3d 984). If the defendant meets this prima facie burden, a hearing on the claim is conducted ( see People v Hamilton , 115 AD3d at 27). Here, the defendant failed to make the requisite prima facie showing, and thus, no hearing was warranted ( see People v Jones , 115 AD3d at 984; People v Hamilton , 115 AD3d at 28).

Section 440.10(1)(g) permits vacatur on actual innocence grounds only after a guilty verdict at trial, so a guilty plea forecloses that relief.

People v. Hinds · filed 2023-06-15(1)(g)

"To the extent that defendant's motion to vacate is predicated upon his claim of actual innocence, we note that vacatur of a judgment of conviction on this ground is expressly conditioned upon the existence of a verdict of guilt after trial and defendant's plea of guilty therefore forecloses relief upon this ground" ( People v Lamb , 162 AD3d 1395, 1397 [3d Dept 2018] [internal quotation marks, emphasis, brackets and citations omitted], lv denied 32 NY3d 1112 [2018]; see CPL 440.10 [1] [g]; People v Vittengl , 203 AD3d 1390, 1392 [3d Dept 2022]).

A CPL 440.10 claim of actual innocence requires newly discovered proof that clearly and convincingly establishes factual innocence, not merely a claim that the evidence of guilt was insufficient.

People v. Mansfield · filed 2024-01-25

Defendant's further claim of actual innocence demanded "newly discovered proof constituting clear and convincing evidence of factual innocence, not mere legal insufficiency of evidence of guilt" ( People v Williams , 182 AD3d 776, 779 [3d Dept 2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 1071 [2020]; see People v Hinds , 217 AD3d 1138, 1141 [3d Dept 2023], lv denied 40 NY3d 951 [2023]; People v Mosley , 155 AD3d 1124, 1125 [3d Dept 2017], lv denied 31 NY3d 985 [2018]).

Section 440.10 requires a defendant claiming actual innocence to present newly discovered proof of factual innocence that meets the clear and convincing evidence standard.

People v. Henley · filed 2024-11-27

As it relates to the balance of defendant's CPL 440.10 motion, County Court (Campanella, J.) properly denied defendant's claim of actual innocence. In order to establish a claim of actual innocence, a defendant must present "newly discovered proof constituting clear and convincing evidence of factual innocence, not mere legal insufficiency of evidence of guilt" ( People v Mansfield , 223 AD3d at 1118 [internal quotation marks and citations omitted]; see People v Mosley , 155 AD3d 1124, 1125 [3d Dept 2017], lv denied 31 NY3d 985 [2018]).

Section 440.10 does not permit a defendant with a valid guilty plea to pursue a claim of actual innocence.

People v. Vences · filed 2024-11-14(1)(g)

Defendant subsequently filed two CPL article 440 motions — one pro se and another through counsel — asserting, among other things, claims of actual innocence ( see CPL 440.10 [1] [g]) and ineffective assistance of counsel ( see CPL 440.10 [1] [h]). ... Defendant's claim of actual innocence is foreclosed by his valid plea ( see People v Tiger , 32 NY3d 91, 102 [2018]; People v Hinds , 217 AD3d 1138, 1141 [3d Dept 2023], lv denied 40 NY3d 951 [2023]).

A CPL 440.10 proceeding is the appropriate forum for a claim of actual innocence.

People v. White · filed 2025-04-09

While the defendant contends that he is actually innocent of these charges, the defendant's claim of actual innocence is not properly raised on this direct appeal, as the appropriate forum for a claim of actual innocence is a CPL 440.10 proceeding.

Section 440.10 requires clear and convincing evidence of actual innocence to vacate a conviction on that ground.

People v. Dushain · filed 2025-12-23

A defendant is entitled to have his judgment of conviction vacated upon a showing of clear and convincing evidence that he is actually innocent ( People v Hamilton , 115 AD3d 12, 15 [2d Dept 2014]; see People v Jimenez , 142 AD3d 149, 155 [1st Dept 2016]). Here, defendant failed to make the requisite showing of actual innocence by clear and convincing evidence.

Section 440.10 provides the proper proceeding for a claim of actual innocence.

People v. Percinthe · filed 2026-06-17

The defendant's contention that he is actually innocent of the charges is not properly raised on direct appeal, as the appropriate forum for a claim of actual innocence is a CPL 440.10 proceeding ( see People v White , 237 AD3d 861, 862).

Section 440.10’s procedural bars can apply to a motion alleging a jurisdictional defect.

People v. Fowler · filed 2025-12-31(3)(c)

Contrary to defendant's contention in his reply brief, the procedural bars to relief under CPL 440.10 are applicable to jurisdictional defects ( cf. People v Cuadrado , 9 NY3d 362, 365 [2007]).

Section 440.10(2)(c) can render a motion to vacate judgment procedurally defective.

People v. Salgado · filed 2015-05-26(2)(c)

Defendant’s motion is procedurally defective under CPL 440.10 (2) (c) and 440.30 (4) (d).

Section 440.10(2)(c) does not bar a motion to vacate a plea when serious doubts about the defendant’s competence are intertwined with a supported ineffective-assistance claim.

People v. Delsol · filed 2015-04-09(2)(c)

In addition, defendant’s claim is closely intertwined with a claim of ineffective assistance of counsel, and the submissions on the motion support a conclusion that counsel rendered ineffective assistance by permitting the plea to go forward without alerting the court to the article 730 examinations. Based on all these considerations, we conclude that the motion was not barred by CPL 440.10 (2) (c).

Section 440.10 permits a court to consider a lengthy delay when deciding whether to apply its permissive procedural bars.

People v. Kirkland · filed 2003-12-08

The court also holds that a lengthy delay in making a motion to vacate a criminal judgment can be considered when the court determines whether to exercise its discretion in applying permissive procedural bars under CPL 440.10 and CPL 440.30.

Section 440.10(2)(a) and (c) can procedurally bar claims of ineffective assistance of trial counsel.

People v. Epps · filed 2007-03-27(2)(a), (c)

The defendant’s remaining claims regarding alleged ineffective assistance of trial counsel are procedurally barred (see CPL 440.10 [2] [a], [c]).

Section 440.10(3) permits a court to consider a credible claim of actual innocence despite its discretionary procedural bars.

People v. Hamilton · filed 2014-01-15(3)

However, since the procedural bars set forth in CPL 440.10 (3) are discretionary, there is no reason why the courts may not consider a credible claim of actual innocence in the exercise of discretion.

A CPL 440.10 motion may be denied when a defendant knew of an alleged juror issue before sentencing but failed to raise it or explain why no record was made.

People v. Tucker · filed 2014-05-28

The Supreme Court properly denied the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction, which he made on the ground that a juror allegedly recognized him during the trial. The defendant’s assertion that he was not aware of the issue until after he was sentenced is refuted by the record, and the defendant did not offer any explanation for his failure to raise the issue and make a record prior to the imposition of sentence (see People v White, 300 AD2d 830, 832 [2002]; People v Berezansky, 229 AD2d 768, 771 [1996]; People v Williams, 190 AD2d 590 [1993]).

Section 440.10(2)(b) can procedurally bar claims concerning a felony complaint, indictment, and grand jury proceedings in a motion to vacate judgment.

People v. Nunez · filed 2015-04-14(2)(b)

Defendant’s motion to vacate the judgment raises issues concerning the felony complaint, indictment and grand jury proceedings. Those claims are procedurally barred (see CPL 440.10 [2] [b]), as well as being without merit.

Section 440.10(3)(c) permits denial of a motion to vacate when the defendant could have raised the claims sooner and extraordinary delay would prejudice a retrial.

People v. Dennis · filed 2016-07-27(3)(c)

The Supreme Court erred in granting the defendant’s motion to vacate the judgment, as the defendant could have raised his claims significantly sooner, and his extraordinary delay in bringing his claims would greatly prejudice the People’s ability to retry the case (see CPL 440.10 [3] [c]; People v Cochrane, 27 AD3d 659, 659 [2006]).

Section 440.10 does not procedurally bar an ineffective assistance motion based on an unperfected direct appeal when the record is insufficient to decide the claim.

People v. Stewart · filed 2017-06-08

The motion court mistakenly found that defendant’s CPL 440.10 motion was procedurally barred. ... We disagree with this procedural analysis, because as described below, the current record is insufficient to determine defendant’s ineffective assistance of counsel claim.

Section 440.10(2)(c) provides a state procedural ground that can bar federal habeas review when a state court relies on it to deny a motion.

Holder v. LaManna · filed 2020-02-18(2)(c)

The state court’s reliance on N.Y. Crim. Proc. Law § 440.10(2)(c) is an “adequate and independent” state law ground that forecloses federal habeas review.

Section 440.10(3)(b) permits denial of a claim decided on the merits in an earlier motion when the defendant fails to show good cause for reconsideration.

People v. Galan · filed 2020-03-11(3)(b)

The Supreme Court should have denied that branch of the defendant's motion which was premised on his claim that his attorney affirmatively misadvised him of the deportation consequences of his plea inasmuch as this Court previously determined the issue on the merits in the prior CPL 440.10 proceeding ( see CPL 440.10[3][b]; People v Huggins , 130 AD3d 1069 ). Contrary to the defendant's contention, he failed to show "good cause" warranting reconsideration of the claim (CPL 440.10[3]; cf. People v Hamilton , 115 AD3d 12 , 28).

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

People v. Edmee · filed 2020-05-13(3)(c)

In the order appealed from, the Supreme Court noted that, in his prior motion, the defendant did not raise the issues raised here. Therefore, the court, in its discretion, could deny the motion pursuant to CPL 440.10(3)(c), which states 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 [*2]position adequately to raise the ground or issue underlying the present motion but did not do so."

CPL 440.10 procedural bars do not apply to sentencing challenges properly brought under CPL 440.20.

People v. Khan · filed 2020-06-24

That branch of the motion was properly made pursuant to CPL 440.20 ( see CPL 440.20[4]). However, in denying the defendant's motion, the court improperly applied the procedural bars applicable to a motion pursuant to CPL 440.10 to these arguments.

Section 440.10 (2) provides mandatory grounds for denying a motion to vacate a conviction, while (3) provides permissive grounds.

People v. Mirabella · filed 2020-10-02(2), (3)

Defendant has made a proper showing for a hearing by asserting a viable legal basis for the motion, substantiated by his own unrefuted sworn allegations and other evidentiary submissions ( see CPL 440.30 [4] [a]-[d]), and neither the mandatory denial provisions of CPL 440.10 (2) nor the permissive denial provisions of CPL 440.10 (3) apply to this case ( see CPL 440.30 [2], [5]) .

Section 440.10(2)(b) does not procedurally bar the ineffective assistance claim raised in this motion.

People v. Jones · filed 2023-06-09(2)(b)

Preliminarily, we agree with defendant that his claim of ineffective assistance of counsel is not procedurally barred by CPL 440.10 (2) (b).

A CPL 440.10 motion alleging ineffective assistance for failure to seek dismissal on statutory speedy trial grounds is not necessarily procedurally barred.

People v. King · filed 2024-07-26

Defendant appeals, by permission of this Court, from an order that denied his motion pursuant to CPL 440.10 seeking to vacate his judgment of conviction on the ground that he was denied effective assistance of counsel. ... We agree with defendant that Supreme Court erred to the extent that it denied defendant's motion as procedurally barred ( see People v Franklin , 206 AD3d 1610, 1611-1612 [4th Dept 2022], lv denied 38 NY3d 1150 [2022]).