After The Appeal
CPL § 440.10 — a motion to vacate at any time after judgment, on the grounds the section lists
At any time. At any time after entry of a judgment, the court that entered it may, on the defendant's motion, vacate it on the grounds the section lists.
- The court lacked jurisdiction.
- The judgment was procured by duress, misrepresentation or fraud by the court or a prosecutor.
- Material evidence was false, and the prosecutor or court knew it before judgment.
- Material evidence was obtained in violation of the defendant's constitutional rights.
- New evidence that could not have been produced at trial with due diligence, creating a probability of a more favorable verdict.
- Forensic DNA testing after judgment, under the standards the section sets.
- The judgment was obtained in violation of the defendant's constitutional rights.
- The defendant's participation in the offense resulted from being a victim of trafficking.
Those are among the grounds. A motion on new evidence is made with due diligence after its discovery.
When the court must deny. The court must deny the motion if the issue was already decided on the merits on appeal, unless the law has since changed retroactively; if the judgment is still appealable and the record permits review on appeal; if the defendant unjustifiably failed to appeal or to raise the issue on appeal when the record allowed it; or if the issue concerns only the sentence. The two bars tied to an appeal do not apply to a claim of ineffective assistance of counsel.
Federal habeas corpus has a deadline of its own, which runs separately and is not on this page. Whether a petition is timely, and which grounds can still be raised, are questions for a licensed New York attorney.
Sources for this section (1)
- CPL § 440.10 — Motion to vacate judgment
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed New York attorney.