N.Y. Crim. Proc. Law § 440.10

A defendant may seek relief under CPL 440.10 for a jurisdictional defect in an indictment even if the defendant did not move to dismiss the indictment before trial.

CARR, JAMES L., PEOPLE v · filed 2015-05-01

Contrary to the People’s contention, defendant’s failure to move, before trial, to dismiss the indictment on that ground does not constitute a waiver of his right to seek that relief.

Section 440.10(1)(a) permits vacatur when an indictment is jurisdictionally defective because it fails to allege acts constituting every material element of the charged crime.

People v. Reeves · filed 2010-11-10(1)(a)

Instead, the question is whether the indictment charging defendant was jurisdictionally defective, in that it “fails to allege that . . . defendant committed acts constituting every material element of the crime charged” (People v Iannone, 45 NY2d 589, 600 [1978]; see CPL 440.10 [1] [a]; People v Hurell-Harring, 66 AD3d at 1127). ... Accordingly, defendant’s motion should have been granted and the judgment of conviction vacated (see People v McCrae, 68 AD3d at 1452).

Section 440.10(1)(a)'s lack-of-jurisdiction ground does not cover a duplicitous but curable indictment.

Grady v. State · filed 2004-04-22(1)(a)

Under Court of Claims Act § 8-b (3) (b) (ii) (A), which incorporates CPL 440.10 (1) (a), a basis for relief exists where a conviction was reversed and the indictment was dismissed upon the ground that “[t]he court did not have jurisdiction of the action or of the person of the defendant.” However, the indictment charging claimant, while duplicitous, was not jurisdictionally defective (see People v Vega, 268 AD2d 686, 687 [2000], Iv denied 95 NY2d 839 [2000]); thus, we reject claimant’s contention that the indictment was "void” (as opposed to curable).

Section 440.10(1)(a) allows a motion to vacate a conviction on the ground that the trial court lacked personal or subject matter jurisdiction.

People ex rel. Howard v. Rock · filed 2009-04-23(1)(a)

Contrary to petitioner’s assertion, a CPL article 440 motion indeed is the mechanism by which he may ... seek to vacate the judgment of conviction upon the ground that the trial court lacked personal and/or subject matter jurisdiction (see CPL 440.10 [1] [a]).

Section 440.10(1)(a) authorizes a motion to vacate a judgment when the court lacked jurisdiction of the defendant.

People ex rel. Burr v. Rock · filed 2012-03-08(1)(a)

CPL 440.10 (1) (a) specifically authorizes a motion to vacate a judgment upon the ground that the court ... did not have jurisdiction of the defendant (compare People ex rel. Johnson v Fischer, 69 AD3d 1100, 1101 [2010], lv denied 14 NY3d 707 [2010]).

Section 440.10(1)(a) authorizes a motion to vacate a judgment when the convicting court lacked jurisdiction over the defendant.

MARTINEZ, MANUEL v. GRAHAM, HAROLD D. · filed 2012-09-28(1)(a)

“Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature . . . CPL 440.10 (1) (a) specifically authorizes a motion to vacate a judgment upon the ground that the court did not have jurisdiction of the defendant”

Section 440.10(1)(a) permits a motion to vacate a judgment when the convicting court lacked jurisdiction of the defendant.

People ex rel. Martinez v. Graham · filed 2012-09-28(1)(a)

“Habeas corpus relief is not an appropriate remedy for asserting claims that were or could have been raised on direct appeal or in a CPL article 440 motion, even if they are jurisdictional in nature . . . CPL 440.10 (1) (a) specifically authorizes a motion to vacate a judgment upon the ground that the court did not have jurisdiction of the defendant”

Section 440.10 permits a motion to vacate a judgment to challenge the constitutionality of a prior conviction used to elevate a later offense.

People v. Brown · filed 2004-12-02

Here, defendant’s remedy for challenging the constitutionality of his prior conviction is upon direct appeal from such conviction or by way of a motion to vacate the judgment pursuant to CPL 440.10 (see People v Knack, 128 AD2d 307 [1987], affd 72 NY2d 825 [1988]).

A CPL 440.10 motion cannot cure the lack of preservation of a Grand Jury notice claim when the dispute appeared on the trial record and no timely objection was made.

People v. Pressley · filed 2000-04-06

Neither the CPL 330.30 motion, nor the CPL 440.10 motion could, in this instance, cure the lack of preservation. The dispute as to notice of the Grand Jury charges appeared on the record when Bogan was called to testify by the defense, without a timely assertion of a CPL 190.50 (5) violation.

Claims omitted from a CPL 440.10 motion are unpreserved on appeal from its denial.

People v. Mezquita · filed 2021-02-16

Regardless of whether defendant's remaining claims are cognizable on a CPL 440.10 motion in the first place, those claims are unpreserved because she did not include them in her motion ( see People v Young , 150 AD3d 429 [1st Dept 2017], lv denied 29 NY3d 1136 [2017]), and we decline to review them in the interest of justice.

A CPL 440.10 motion raising a challenge to the voluntariness of a guilty plea preserves that challenge for appellate review.

People v. Griffin · filed 2010-04-30

Although that contention is preserved for our review because it was raised in defendant’s CPL 440.10 motion ... we nevertheless conclude upon our review of the record that it lacks merit.

Section 440.10 provides a motion to vacate a conviction as one way to preserve a challenge to the factual sufficiency of a guilty plea.

People v. Seitz · filed 2006-01-25

The general rule is that to preserve a challenge to the factual sufficiency of a plea, there must either be a motion to withdraw the plea pursuant to CPL 220.60 (3) or a motion to vacate the conviction pursuant to CPL 440.10 (People v Lopez, 71 NY2d 662 [1988]; People v Larry B., 277 AD2d 989 [4th Dept 2000]; People v Thoreck, 303 AD2d 982 [4th Dept 2003]).

A motion to vacate judgment under CPL 440.10 can preserve a challenge to the factual sufficiency of a guilty plea allocution for appellate review.

People v. Taufman · filed 2005-01-31

The defendant’s challenge to the factual sufficiency of the plea allocution was preserved by his motion to vacate the judgment of conviction under CPL 440.10 (cf. People v Lopez, 71 NY2d 662, 665 [1988]; People v Deyes, 3 AD3d 575 [2004]).

A defendant must raise a ground in a CPL 440.10 motion to preserve it for review on appeal from the motion's denial.

People v. Kimball · filed 2023-02-09

Noticeably absent from defendant's CPL 440.10 motion is any mention of a potential intoxication defense or any suggestion that he lacked the requisite intent to commit the subject crime. As defendant did not move to vacate the judgment of conviction upon this ground, we find this argument to be unpreserved for our review ( see generally People v Stuber , 205 AD3d 1147, 1149 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]; People v English , 100 AD3d 1147, 1148 [3d Dept 2012]; People v Campbell , 81 AD3d 1184, 1185 [3d Dept 2011]).

Section 440.10(1)(f) permits review of issues arising under CPL 310.30.

People v. McDowell · filed 2005-02-04(1)(f)

The note was clearly not a request for further instructions or information and, although issues under section 310.30 may be reviewed pursuant to section 440.10 (1) (f) (see People v Dixon, 221 AD2d 1005 [1995], lv denied 87 NY2d 972 [1996]), the note did not implicate the need for the procedures pursuant to People v O’Rama (78 NY2d 270 [1991]; see People v Damiano, 87 NY2d 477, 487 [1996]; People v Agosto, 73 NY2d 963, 966 [1989]).

Section 440.10 generally requires courts to review mixed claims in their entirety, even when some elements are procedurally barred.

Witherspoon v. Colvin · filed 2023-02-21

Although Witherspoon is right on the law -- New York generally requires courts adjudicating section 440 petitions to review mixed claims in their entirety, even where some elements are procedurally barred -- he is not correct that the section 440 court passed over the merits of his ineffective assistance claims.

A CPL 440.10 motion is a judicial remedy and is not required before an article 78 challenge to DOCS’s administrative imposition of postrelease supervision.

Waters v. Dennison · filed 2006-11-03

Requiring this defendant to move via a CPL 440.10 motion would ignore the administrative action that requires review.

Section 440.10 provides an available but nonexclusive means to challenge an improperly imposed sentence; habeas corpus may also be available.

People ex rel. Lewis v. Warden, Otis Baum Correctional Center · filed 2006-11-24

I concur in their opinions that a defendant has the right and option to review an improper sentence by either a motion pursuant to CPL article 440 or appeal; however, I obviously disagree as to the exclusivity of the remedy.

A defendant may seek to vacate a judgment under CPL 440.10 after filing a procedurally improper CPL 330.30 motion.

People v. Griffin · filed 2008-02-08

Further, defendant’s retained counsel was not ineffective for filing a procedurally improper CPL 330.30 motion rather than a CPL 440.10 motion because defendant is not precluded from bringing a motion to vacate the judgment pursuant to CPL 440.10.

Section 440.10(1)(c) provides a ground for vacatur when material trial evidence was false and the prosecutor knew it was false before judgment.

Turner v. State · filed 2008-04-15(1)(c)

Implicit in that determination were the factual findings that the prosecutor was responsible for the perjured testimony at trial, when the complainant testified that he had no criminal record, because the prosecutor’s office had been in actual possession of the complainant’s criminal record at that time. These findings by the District Court were sufficient to constitute the CPL 440.10 (1) (c) ground for vacatur that “[mjaterial evidence adduced at a trial resulting in a judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false.”

Section 440.10(1)(i) requires a hearing when a defendant's allegations raise an issue of fact about whether sex trafficking caused their participation in the offense.

People v. L.F. · filed 2026-05-20(1)(i)

Under these circumstances, the defendant's allegations were sufficient to raise an issue of fact as to whether her participation in the offense underlying her conviction was the result of having been a victim of sex trafficking. Therefore, the Supreme Court should not have denied that branch of the defendant's motion which was pursuant to CPL 440.10(1)(i) to vacate the judgment without a hearing.

Section 440.10(1)(i) permits vacatur of a trafficking victim’s related non-prostitution conviction when a prostitution-related charge was among the arresting charges and the offense resulted from trafficking.

People v. L.G. · filed 2013-07-12(1)(i)

It necessarily follows that where, as here, one of the arresting charges was loitering for the purpose of engaging in prostitution, and the defendant pleaded guilty to a related non-prostitution crime, then that conviction must be regarded as having resulted from defendant’s having been a victim of sex trafficking. Consequently, that charge may be vacated under CPL 440.10 (1) (i).

Section 440.10(1)(i) allows a court to vacate a prostitution-related conviction when the defendant’s participation resulted from sex trafficking.

People v. Doe · filed 2011-11-22(1)(i)

In 2010, the Legislature amended CPL 440.10 to add a provision allowing a judgment to be vacated where defendant was arrested for loitering for the purposes of prostitution or engaging in prostitution and defendant’s participation in the offense was a result of sex trafficking under Penal Law § 230.34 or the TVPA (CPL 440.10 [1] [i]). ... The court, with the consent of the People, accordingly grants defendant’s motion to vacate the judgments on docket numbers 2006BX048415, 2006BX049106 and 2006BX053091 and to dismiss and seal all records of those dockets.

Section 440.10(1)(i) permits vacatur of a prostitution judgment when the defendant’s participation resulted from being a victim of sex trafficking.

People v. S.S. · filed 2012-01-10(1)(i)

This defendant presents precisely the type of case that the 2010 amendment to Criminal Procedure Law § 440.10 was enacted to address. Accordingly, defendant’s motion is granted, the accusatory instrument is dismissed and the record is sealed.

Section 440.10(1)(i) permits a court to vacate prostitution convictions when credible evidence shows by a preponderance that the defendant’s participation resulted from sex trafficking; corroboration and an official victim designation are not required.

People v. Gonzalez · filed 2011-07-11(1)(i)

Furthermore, the legislature did not require any specific corroborating facts or other evidence which would support a defendant’s application pursuant to CPL 440.10 (1) (i). By avoiding bright-line rules and formulaic determinations, the legislature squarely gave the courts the discretion to grant relief pursuant to CPL 440.10 (1) (i) when a defendant could show by a preponderance of the evidence that he or she was a sex trafficking victim. Moreover, CPL 440.10 (1) (i) (ii) provides that the absence of a finding by a governmental organization that a defendant is a victim of sex trafficking is not a bar to relief thereunder.

Section 440.10(1)(i) does not require federal documentation of trafficking victim status, but such documentation creates a presumption that the offense resulted from trafficking.

People v. G.M. · filed 2011-04-29(1)(i)

While “official documentation of the defendant’s status” from a federal agency is not required for granting a motion to vacate under CPL 440.10 (1) (i), it nevertheless “create[s] a presumption that the defendant’s participation in the offense was a result of having been a victim of sex trafficking or trafficking in persons” (CPL 440.10 [1] [i], [ii]).

A defendant seeking relief under CPL 440.10 need not be represented by the attorney who represented the defendant at trial.

People v. Crowder · filed 2012-06-12

While defendant points out that her trial attorney was in no position to make a CPL 440.10 motion attacking his own performance, there is no requirement that a defendant be represented in postconviction proceedings by the same attorney who represented the defendant at trial.

Section 440.10 does not permit the People to move to vacate a judgment of conviction or set aside a plea.

People v. Dame · filed 2012-11-01

To the extent that defendant contends that the People should take the initiative in this regard, although CPL article 440 indeed provides for a postjudgment motion by the People to set aside an invalid sentence (see CPL 440.40), nothing contained therein permits the People to move to set aside a plea or vacate a judgment of conviction (see CPL 440.10; see also People v Moquin, 77 NY2d 449, 452 [1991]).

A corporation claiming to be separate from the convicted defendant lacks standing under CPL 440.10 to vacate that defendant’s judgment.

People v. Absolute Elec. Contr., Inc. · filed 2019-11-22

While Absolute Electrical Contracting of NY, Inc. asserts that it is aggrieved by a New York City marshal's attempt to enforce a judgment against it, rather than against Absolute Electrical Contracting, Inc., the party convicted and fined $500, in seeking a remedy, the former corporation, by its own claim, did not have standing to move pursuant to CPL 440.10 to vacate the judgment rendered against the latter defendant corporation ( see People v Quiroga-Puma , 24 Misc 3d 29 , 31 [App Term, 2d Dept, 9th & 10th Jud Dists 2009] [" 'Standing goes to the jurisdictional basis of a court's authority to adjudicate a dispute' "], quoting Stark v Goldberg , 297 AD2d 203, 204 [2002]).

A court may entertain a CPL 440.10 motion even when the defendant has been deported and cannot appear in person.

People v. Badia · filed 2013-05-16

The motion court erred in holding that it was “constrained,” by People v Diaz (7 NY3d 831 [2006]), to deny defendant’s Padilla-based motion to vacate his conviction because defendant had been deported and was no longer within the court’s jurisdiction. Defendant’s physical inability to appear in court was not a proper basis for failing to entertain the motion (see People v Ventura, 17 NY3d 675 [2011]).

A trial court may decline to entertain a CPL 440.10 motion when the defendant has been involuntarily deported.

People v. Buitago · filed 2016-08-08

The right to take a CPL 440.10 motion is not a fundamental right but one that is created by statute. Furthermore, should the deported defendant appeal the trial court’s CPL 440.10 decision, the appellate court would not be required to entertain it. Logically it follows that the trial court may choose not to entertain a CPL 440.10 motion where the defendant has been involuntarily deported.

Section 440.10 provides a motion to vacate the judgment as the remedy for a defendant who claims he would not have pleaded guilty had he known of possible indefinite confinement under SOMTA and who did not move to withdraw his plea.

People v. Mosqueda · filed 2018-05-23

To the extent that the defendant contends that he was unaware of the possibility of indefinite confinement under SOMTA and that he would not have pleaded guilty had he known ( see People v Harnett , 16 NY3d 200, 208), his remedy, since he failed to move to withdraw his plea of guilty, is to move to vacate the judgment pursuant to CPL 440.10 ( see People v Balcerak , 144 AD3d 833, 834).

CPL 440.10(1)(h) does not permit vacatur because a regulation enacted after a guilty plea imposes a consequence the defendant was not told about.

People v. Wheaton · filed 2015-06-15(1)(h)

I do not agree with the Luther court that CPL 440.10 is applicable. To hold that the failure to advise the defendant of a consequence then not in existence somehow renders the judgment of conviction to have been obtained in violation of due process or any other constitutional right defies both logic and common sense.

Section 440.10(1)(h) permits a court to vacate a guilty plea when the judgment was obtained in violation of the defendant’s constitutional rights.

People v. Luther · filed 2013-06-30(1)(h)

Upon review of CPL 440.10, this court finds that there is a valid basis to set aside the plea pursuant to section 440.10 (1) (h) which provides that a judgment may be set aside by the trial court if such judgment was obtained “in violation of a right of the defendant under the constitution of this state or of the United States.”

Section 440.10 provides the procedure for raising a claim that counsel misadvised a defendant about the immigration consequences of a guilty plea.

People v. Pastor · filed 2016-12-15

To the extent defendant contends that his attorney misadvised him about the immigration consequences of his plea, defendant must raise that claim by way of a CPL 440.10 motion.

Section 440.10(1)(f) permits vacatur for improper and prejudicial conduct outside the record only if that conduct would have required reversal on direct appeal.

SCHROCK, MICHAEL L., PEOPLE v · filed 2013-07-19(1)(f)

It therefore follows that County Court could not have granted defendant’s motion under CPL 440.10 (1) (f) unless the unauthorized use of the stun belt at trial constitutes a mode of proceedings error, in which case reversal would have been required on direct appeal if the use of the stun belt had been disclosed on the record (see generally People v Tabb, 13 NY3d 852, 853).

Section 440.10(1)(f) applies to improper and prejudicial conduct during a trial, so it does not provide a ground to vacate a conviction obtained by guilty plea.

People v. Burnell · filed 2022-09-29(1)(f)

Preliminarily, to the extent that defendant's motion to vacate is premised upon CPL 440.10 (1) (f), we note that such ground is limited to "[i]mproper and prejudicial conduct not appearing in the record [that] occurred during a trial " (emphasis added). As the judgment of conviction here was procured by a guilty plea, this portion of the statute is inapplicable.

Section 440.10(1)(g-1) does not warrant a new trial based on new DNA results unless they raise a reasonable probability of a more favorable verdict.

People v. Perez · filed 2015-11-05(1)(g-1)

The motion court correctly determined that the results of new DNA testing performed on three beer bottles recovered at the scene of the crime would not have raised a reasonable probability of a more favorable verdict (see CPL 440.10 [1] [g-1]; People v Hicks, 114 AD3d 599 [1st Dept 2014]).

Section 440.10(1)(g-1) requires forensic DNA evidence showing a substantial probability of actual innocence; evidence bearing only on involuntary intoxication does not qualify.

People v. Adamo · filed 2019-07-25(1)(g-1)

Under that provision, a court may vacate a judgment of conviction entered upon a guilty plea if forensic DNA testing of evidence demonstrates "a substantial probability that the defendant was actually innocent of the offense of which he or she was convicted" (CPL 440.10 [1] [g-1]). The DNA testing performed here demonstrated that defendant has a genetic deficiency that negatively affects his ability to metabolize antidepressants and antipsychotic medications, which, at most, would lend itself to establishing his involuntary intoxication during the offense ( see e.g. Penal Law § 15.25; People v Harris , 98 NY2d 452, 474-475 [2002]); it does not establish defendant's actual innocence of the underlying crime. Thus, the hearing required upon remittal need not address whether the judgment of conviction must be vacated under CPL 440.10 (1) (g-1).

Section 440.10(1)(g-1) provides a separate ground for vacating a judgment that is not encompassed by paragraph (g).

Ortiz v. State of New York · filed 2022-03-18(1)(g-1)

The legislature did not make such an amendment, and we therefore read paragraph (g-1) as a separate ground for relief—i.e., one not encompassed in CPL 440.10 (1) (g).

Section 440.10(1)(g-1)(2) permits a court to vacate a trial conviction when later DNA testing creates a reasonable probability that the verdict would have been more favorable to the defendant.

People v. Robinson · filed 2023-03-22(1)(g-1)(2)

Under all of these circumstances, while not a "virtual certainty," there existed a reasonable probability that the verdict would have been more favorable to the defendant had the DNA evidence been admitted at trial ( People v Hicks , 114 AD3d at 602; see also People v Robinson , 147 AD3d at 785). Accordingly, we grant the defendant's motion pursuant to CPL 440.10(1)(g-1) to vacate the judgment convicting him of murder in the second degree, vacate the judgment, and remit the matter to the Supreme Court, Queens County, for a new trial on that count of the indictment.

A defendant bringing a § 440.10 motion alleging ineffective assistance may submit either an affidavit from the challenged attorney or an explanation for its absence.

Jenkins v. Greene · filed 2010-12-23

It is simply not true, however, that New York law required defendants to present an affidavit from the allegedly ineffective counsel. The very cases on which Jenkins himself relies are clear that the New York courts do not inflexibly require that defendants claiming ineffective assistance must present a supporting affidavit from the challenged attorney. No doubt recognizing that obtaining such an affidavit may prove difficult, the New York courts have expressly stated that either an affidavit from counsel or an explanation of why such an affidavit is not available is acceptable.

A defendant seeking to vacate a conviction for ineffective assistance of counsel need not submit an affidavit or affirmation from former counsel attesting to ineffectiveness.

People v. Pinto · filed 2015-11-18

A defendant seeking to vacate a judgment of conviction on the ground of ineffective assistance of counsel need not submit an affidavit or affirmation from his or her former attorney attesting to counsel’s ineffectiveness (see People v Radcliffe, 298 AD2d 533, 534-535 [2002]; accord People v Washington, 128 AD3d 1397, 1399 [2015]).

Section 440.10 does not require a response from trial counsel before a defendant files a motion to vacate judgment.

Jeffrey v. Capra · filed 2020-08-12

Petitioner’s difficulty obtaining a response from his trial attorney also does not constitute an external impediment to his seeking collateral relief, because such a response is not a prerequisite to filing a motion under CPL§ 440.10.

Section 440.10(1)(k) creates a rebuttable presumption that a plea to a former marihuana offense was not knowing, voluntary, and intelligent when the conviction has severe or ongoing consequences, including immigration consequences.

People v. Soodoo (Sunil) · filed 2021-10-07(1)(k)

Therefore, the expungement and vacatur mandate of CPL 160.50 (5), in combination with CPL 440.10 (1) (k)—which creates a rebuttable presumption that defendant's guilty plea to a former marihuana-related offense was not entered knowingly, intelligently, and voluntarily—provided the District Court with sufficient statutory authority in support of defendant's further relief, and the ability to grant such relief in light of defendant's documented ongoing immigration consequences as a result of his marihuana convictions.

Section 440.10(1)(j)'s presumption that a qualifying misdemeanor plea was not knowing, voluntary, and intelligent can be rebutted when the defendant was clearly warned that the plea could lead to deportation.

People v. Boodoosingh (Percival) · filed 2022-03-11(1)(j)

It is for these very same reasons that we conclude that the People rebutted the presumption contained in CPL 440.10 (1) (j).

Section 440.10(1)(h) permits vacatur of a judgment obtained in violation of the defendant’s right to a fair trial before an unbiased fact finder.

People v. Kagan · filed 2022-04-06(1)(h)

Accordingly, because the defendant demonstrated, by a preponderance of the evidence, that the judgment was obtained in violation of his right to a fair trial before an unbiased fact-finder, the Supreme Court should have granted the defendant's motion to vacate so much of the judgment as convicted him of murder in the second degree ( see CPL 440.10[1][h]; 440.30[6]).

Section 440.10(1)(e) requires a defendant seeking to vacate a guilty plea on this ground to show that a mental disease or defect made them incapable of understanding or participating in the plea proceeding.

People v. McGill · filed 2022-07-28(1)(e)

... on this record, we cannot say that County Court [*3]abused its discretion by concluding that defendant failed to demonstrate that he was incapable of understanding or participating in the plea proceeding "by reason of [a] mental disease or defect" (CPL 440.10 [1] [e]).

Section 440.10(1)(i) and (6) allow eligible sex trafficking victims to seek vacatur of criminal convictions, but do not shield them from civil liability.

Giuffre v. Oh · filed 2024-10-22(1)(i), (6)

That plaintiff might fall under the protections of CPL 440.10(1)(i) and (6) (the START Act), which would entitle her to seek vacatur of any criminal conviction where her participation in the offense was a result of having been a victim of sex trafficking, does not bar revival of a civil claim against her pursuant to CPLR 214-j ( see Schearer v Fitzgerald , 217 AD3d 980, 982 [2d Dept 2023]). Nor does the START Act otherwise insulate her from civil liability, even where the claims arise from intentional acts. Nothing in the language of the Act or its legislative history indicates that the legislature intended it to apply to civil actions.

Section 440.10(1)(h) permits a motion to vacate a judgment tainted by deficient plea negotiation or advocacy by counsel.

People v. Peyrefitte · filed 2024-11-19(1)(h)

By permitting vacatur of a judgment because it was obtained in violation of a defendant's state and federal constitutional rights, CPL § 440.10(1)(h) is broad and inclusive, necessarily encompassing a judgment interwoven with deficient plea negotiation and advocacy by counsel.

A CPL 440.10 motion to vacate a judgment is not a postallocution motion to withdraw a guilty plea.

People v. Randolph · filed 2024-11-27

He did not make any attempt to vacate his plea until he filed a CPL 440.10 motion — which, contrary to defendant's understanding, is not a postallocution motion ( see CPL 220.60 [3]).

A mistrial does not prevent a defendant from using section 440.10 to claim that counsel was ineffective for failing to seek suppression before the first trial.

People v. Conley · filed 2025-01-31(1)(h)

Further, contrary to the People's assertion, the fact that defendant's first trial ended in a mistrial does not preclude defendant from contending in her CPL 440.10 motion that the failure to seek suppression of evidence in the omnibus motion filed before the first trial on the grounds that the search exceeded the scope of the warrant and the warrant lacked particularity denied her effective assistance of counsel.