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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23164
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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How do I go about applying for a 440 motion and am I qualified

Resolved Question:

How do I go about applying for a 440 motion and am I qualified to apply based on my merits below:

I pleaded gulity to a crime in 2004 for criminal possession of stolen property in the 4th degree in a Newyork court. My lawyer at the time of my plea never advised me of any immigration consequence or collateral infact I never planned to take any plea the day I was sentenced, I had gone infront of the Judge and it was adjourned again and my lawyer later came to talk to me in the waiting pen to convince me that if I plea now, "YOU WILL WALK STRAIGHT OUT OF THAT COURT ROOM FREE", I immediately took his advise and he convinced me that since I have never had any run-in with the law as a first time it was going to be time served. I took his advise and he later made them call me out of the court room the second time moments after and I was sentence but then I was told to still wait in the pen for them to finalize some paperwork for me to be released and he later came to tell me that there was something wrong with their system or computer so I will have to take a correctional bus ride back to riker's island jail for them to do the release overthere. I did as he advised and there were now some complications of release at riker's island and after about four days extra in riker's island jail, immigration came to put an immigration hold on me and I was put into immigration/deportation proceeding and detained for a total of over 22 months waiting on immigration appeals and legal battle for this one conviction on my record. I was a Legal permanent resident before my plea and then immigration then decided to revoke my green card and finally ordered me deported. I was initially released by immigration after being detained for 22 months while the immigration appeal was pending and I tried to get my life together, by going back to school and getting educational certificates and getting a job, buying a house and many positive things in my life until the appeal came back unfavorably and so I had to leave the country. I have lost my house, my job and many things in my life due to this conviction and I do not have any other conviction on my record. I initially filed a 440 motion while in immigration detention the in 2004 but was denied.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.

I take it you're looking to overturn your 2004 conviction. On what grounds did you file one of these the first time, and on what basis was your 440 motion previously denied?
Customer: replied 5 years ago.
I filed on the ground that my attorney never informed me about the immigration consequence and I had no idea. It was denied based on the record that the Judge asked me few times in court during sentencing if I am aware of my plea and if anyone had promised me anything in return for my plea which I said no.
Expert:  Zoey_ JD replied 5 years ago.

I'm sorry to have to tell you that you don't have a basis to do another 440 motion. The grounds for a 440 motion are quite specific and very limited. There are only 8 possible grounds for the motion to vacate a NYS conviction, These are found in section 440.10 of the CPL. In order to be able to move for this remedy, you have to allege that one of the following occurred:

(a) The court did not have jurisdiction of the action or of the
person of the defendant; or

(b) The judgment was procured by duress, misrepresentation or fraud
on the part of the court or a prosecutor or a person acting for or in
behalf of a court or a prosecutor; or

(c) Material evidence adduced at a trial resulting in the judgment
was false and was, prior to the entry of the judgment, known by the
prosecutor or by the court to be false; or

(d) Material evidence adduced by the people at a trial resulting in
the judgment was procured in violation of the defendant`s rights under
the constitution of this state or of the United States; or

(e) During the proceedings resulting in the judgment, the defendant,
by reason of mental disease or defect, was incapable of understanding or
participating in such proceedings; or

(f) Improper and prejudicial conduct not appearing in the record
occurred during a trial resulting in the judgment which conduct, if it
had appeared in the record, would have required a reversal of the
judgment upon an appeal therefrom; or

(g) New evidence has been discovered since the entry of a judgment
based upon a verdict of guilty after trial, which could not have been
produced by the defendant at the trial even with due diligence on his
part and which is of such character as to create a probability that had
such evidence been received at the trial the verdict would have been
more favorable to the defendant; provided that a motion based upon such
ground must be made with due diligence after the discovery of such
alleged new evidence; or

(h) The judgment was obtained in violation of a right of the
defendant under the constitution of this state or of the United States.

You filed your motion 6 years ago on the only basis that your fact pattern established -- that your attorney had failed to apprise you of the immigration consequences of your plea. This would fall under section (h) of the statute, as essentially you were saying that you were denied the effective assistance of counsel (a 6th Amendment Constitutional right) because you were never informed of the immigration consequences of your plea.

You've already had this matter ruled upon and it was denied on the merits of your argument based on the record you made in court. If you file it again it will be denied as a matter of law.
Customer: replied 5 years ago.
Please, what did you mean about "If you file again it will be denied as a matter of law" ? Secondly, is there any time limitation of filing a 440 motion or has the time elapsed. Thirdly, can someone who has been deported by immigration that is now outside the country file a 440 motion for ineefective counsel?
Expert:  Zoey_ JD replied 5 years ago.

What I'm saying is you already made this motion 6 years ago on the only grounds you had and the matter was litigated. Whether or not you are in the US you cannot bring a 440 motion again because the issue has already been ruled upon and denied.

A 440 Motion is what is known as a collateral proceeding, meaning that you are trying to get your judgment vacated because of a fact that isn't in the record. There is no direct appeal when a collateral proceeding is denied. If you were still incarcerated you could have brought a writ of habeas corpus 6 years ago and asked for permission to take this to a higher court. But you are not presently being wrongfully detained by US authorities and that remedy is no longer available to you.

I am sorry to be the bearer of bad news, but I see nothing further you can do at this time along the lines you are contemplating. It is, as you learned 6 years ago, almost impossible to get a plea back once you have admitted your guilt on the record. Judges make sure that what you admit to at the time of the taking makes it just about airtight.

You could certainly contact a post conviction lawyer and see if there's some other remedy along other lines that I'm not aware of. But unfortunately, I think that at this juncture, there's nothing much you'll be able to do.
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Customer: replied 5 years ago.

Can a 440 motion be appealed?

Does someone have to be physically in the U.S. to apply for a 440 motion?

Expert:  Zoey_ JD replied 5 years ago.

I've already answered the first part of your question. There is no direct appeal from a denial of a 440 motion. What that means is, once it's denied, you cannot automatically appeal to a higher authority the way you could have done if you were appealing a conviction after trial. You need to ask permission from the court to take it further in order to appeal it above the trial level.

Unfortunately, a motion for permission to appeal from an order denying a CPL 440 motion must be made within 30 days from the date that a copy of the order denying the motion is served. So while you could have tried to appeal the denial 6 years ago, you are now time barred from doing this at this late date. (See CPL 460.10 [4] [a])
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