APPELLATE NEW YORK

Martin J. McGuinness, Esq.

CPL ARTICLE 440 MOTION, ANOTHER WAY TO APPEAL IN NEW YORK

Another avenue to attack a conviction after trial other than an appeal is through a Criminal Procedure Law "CPL" Article 440 motion. Commonly referred to as a "440 motion" by lawyers and defendants, the motion constitutes a collateral attack on a conviction. Essentially, the defendant petitions the trial court to "vacate" or undo their conviction based upon one or more of the grounds listed in the statute. The benefit of a 440 motion, as opposed to the appellate process, is that a defendant may include matters that are not included in the trial "record." On an appeal, the defendant's arguments must be based on facts contained in either the trial transcripts or in other papers filed with the trial court. Arguments in a 440 motion, however, may be based on other documents, including those created or discovered after the trial. Also, as opposed to the appeal in which a defendant only gets one automatically, there is no limit to the number of 440 motions that a defendant may file. If the motion is denied, however, the defendant does not have an automatic appeal and must request permission to appeal from the Appellate Division. It is very common for a defendant to pursue both an appeal and to file a 440 motion in the trial court.