CHAPTER 20 - CHAPTER 20 - Using Article 440 of the New York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal Sentence

Sep 30, 2026

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Explains how to challenge a conviction or sentence in New York state court using motions under Article 440 of the New York Criminal Procedure Law. Describes when an Article 440 motion may be used, what it is for, and how it differs from an appeal, since appeals are limited to the trial record. Covers the two motion types—vacating a judgment and setting aside a sentence—and the role of facts not reflected in the record.

LanguageEnglish

CategoryExam

FormatPDF

Pages31

Reading Time1 h 18 min

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A. Introduction

B. When to Use Article 440

1. What is an Article 440 Motion?

CHAPTER 20 USING ARTICLE 440 OF THE NEW YORK CRIMINAL PROCEDURE LAW TO ATTACK YOUR UNFAIR CONVICTION OR ILLEGAL SENTENCE* A. Introduction If you have been convicted in a New York state court, it may be possible for you to challenge and possibly overturn your conviction. Under certain circumstances (explained below), you may ask the trial court to either “vacate” (cancel) the judgment or “set aside” your sentence. You can make this request in a “motion”1 brought under Article 440 of the New York Criminal Procedure Law.2 Part B of this Chapter explains what Article 440 motions are, why you may make a motion, and when a court will consider your motion. Part C explains how to make an Article 440 motion. Part D describes what usually happens after you make an Article 440 motion. Part E details the positive decisions possible through an Article 440 motion. Part F explains how to appeal a court’s denial of your Article 440 motion. Part G summarizes important things to think about when making an Article 440 motion. Finally, Appendix B to this Chapter contains forms for filing Article 440 motions. If you have been convicted in another state court (besides New York), see Appendix A for a list of similar post-conviction relief statutes from other states. B. When to Use Article 440 1. What is an Article 440 Motion? An Article 440 motion challenges the legality of your conviction or sentence.3 If your Article 440 motion succeeds, you will receive a new trial or a new sentence. An Article 440 motion is not an“appeal”4 and is not a substitute for an appeal or second appeal.5 In an appeal, you request a higher court (i.e., the “appellate division” or a “court of appeals”) to review errors of the trial court. In an appeal, you may only raise issues that were part of the trial record. The following list describes information included within your trial record. This information is usually part of a traditional appeal. The following information is not usually included in an Article 440 motion: (1) The “complaint” and the “indictment,” (2) The “minutes” of any “hearing to suppress evidence”(a hearing to exclude evidence resulting from an illegal search or seizure) and other hearings, and (3) The report of the formal proceedings in the trial court. This includes: (a) the pleadings and motions made by both sides, * This Chapter was revised by Geoffrey Gordon based on previous versions by Melissa Elstein, Maia P. Sloss, members of the 1977 Columbia Human Rights Law Review, Terry Dixon, and Joe Pellican. Special thanks to Harold Ferguson at the Legal Aid Society for his helpful comments. 1. A motion is a request to a court or judge asking for a ruling or order in your favor. 2. The laws pertaining to Article 440 motions can be found in §§ 440.10–440.70 of the New York Criminal Procedure Law (“N.Y. Crim. Proc. Law”) . 3. Other ways of attacking your conviction include filing an appeal, or a state or federal writ of habeas corpus. For information about how to file an appeal, please see Chapter 9,“Appealing Your Conviction or Sentence,” of the JLM. For information about federal and state writ of habeas corpus, please see Chapter 13,“Federal Habeas Corpus,” and Chapter 21,“State Habeas Corpus,” of the JLM. These two chapters describe the federal writ of habeas corpus and the state writ of habeas corpus, respectively. Both of these writs can be used to obtain post-conviction relief for state and federal constitutional violations. 4. For more on how to appeal your conviction, see JLM, Chapter 9, “Appealing Your Conviction or Sentence.” 5. See People v. Harris, 109 A.D.2d 351, 353, 491 N.Y. S.2d 678, 682 (2d Dept. 1985) (explaining that an Article 440 motion “is designed to inform the court of facts not reflected in the record and not known at the time of judgment that would, as a matter of law, undermine the judgment.”) . (b) the minutes of a guilty plea if you made one, (c) the minutes of the trial court, including obje

FAQs

What is an Article 440 motion used for?

An Article 440 motion challenges the legality of a conviction or sentence. If it succeeds, it can result in a new trial or a new sentence.

How is an Article 440 motion different from an appeal?

An appeal asks a higher court to review trial court errors, generally based on the trial record. An Article 440 motion informs the trial court of facts not in the record.

What are the two types of Article 440 motions?

The two types are a motion to vacate the judgment and a motion to set aside the sentence. The first attacks the fairness and/or legality of the conviction, while the second attacks the sentence as too harsh or beyond legal limits.

Sep 30, 2026

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