After a criminal conviction takes place in the state of New York, a defendant has the legal right to challenge the results and submit an appeal. Two of the types of motions a defendant can submit are a 330 motion and a 440 motion. Both can provide important opportunities for relief, and whether either is appropriate for your criminal case depends on the nature of the claims involved.

If you are on criminal trial, it's important to know what options you have after it is over. In this blog, we will explain what a 330 motion and a 440 motion are, how they work in New York State criminal cases, and what their key differences are.

Explaining How a 330 Motion Works

A 330 motion is a motion under New York Criminal Procedure Law § 330.30 to set aside or modify a guilty verdict. 

A 330 motion is available after a guilty verdict but before a defendant's sentencing. Under CPL 330.30, a court may set aside or modify a verdict on specific grounds, including an error appearing in the trial record that would require an appellate court to reverse or modify a resulting conviction. 

The statute also permits relief based on certain juror misconduct and newly discovered evidence. For newly discovered evidence, the defendant must establish, among other requirements, that the evidence could not have been produced at trial even with due diligence and that it is of such a character that, had it been received at trial, the verdict probably would have been more favorable to the defendant.

To simplify, a 330 motion allows the trial court to address certain problems before the defendant is sentenced. To give an example, let's say that a significant legal error occurred during the trial and is reflected in the record; the defense counsel may ask the judge to set aside the verdict rather than waiting for the issue to be addressed through an appeal. It's a form of checkup that makes it a great path to take for the side of the defendant.

Explaining How a 440 Motion Works

A 440 motion refers to a post-judgment motion under CPL 440.10 to vacate a criminal judgment. 

Unlike a 330 motion, a 440 motion is made after judgment has been entered. The statute identifies numerous potential grounds for relief, including certain jurisdictional defects, ineffective assistance of counsel, fraud or misrepresentation, certain claims involving false or constitutionally obtained evidence, newly discovered evidence that satisfies specific statutory requirements, constitutional violations, and other circumstances specifically identified in CPL 440.10.

A related provision, CPL 440.20, permits a defendant to ask the court to set aside a sentence when it was unauthorized, illegally imposed, or otherwise invalid as a matter of law. One important characteristic of CPL Article 440 is that these proceedings can address certain factual matters that may not be fully established by the existing trial record. We recommend you read more on the official New York State Senate government site about how these work.

The Key Differences Between a 330 Motion and 440 Motion

Let's now take a look at several of the major key differences between a 330 motion and a 440 motion:

• A 330.30 motion is made after a guilty verdict but before sentencing and challenges the verdict on authorized grounds.

• A 440.10 motion is made after judgment and seeks to vacate a judgment based on the grounds that are established by the statute.

• A 440.20 motion is made after judgment and challenges the legality or validity of the sentence.

A 440 motion is essentially a post-judgment remedy for a defendant. Article 440 is expressly designated in New York's Criminal Procedure Law as covering “Post-judgment Motions.” Importantly, a 440 motion is not a substitute for a direct appeal; that's important to keep in mind. New York State law contains procedural limitations concerning issues that could have been raised through an appeal based on the existing record. 

For a defendant who is convicted in the state of New York, understanding which motion best applies to their case can be make-or-break. A defendant may have multiple avenues for challenging a conviction or a sentence.

A direct appeal examines issues that are presented to an appellate court. A 330 motion, by contrast, asks the trial court to address problems before sentencing. A 440 motion asks the court to provide post-judgment relief when the statutory requirements are met.

The appropriate remedy can depend heavily on when the alleged error occurred, whether it appears in the trial record, and what type of relief the defendant is seeking after it's found.

Why Having an Experienced Appeal Attorney Matters For This

New York State's post-conviction procedures are very thorough, and without an experienced legal team to help you, it will make this process more difficult than it needs to be. Determining whether a criminal case goes through a 330 motion, direct appeal, 440 motion, or other types of motions requires careful review from a defense attorney who will take your case seriously. 

For anyone in Buffalo and throughout Western New York, we are here to help educate you on these distinctions between these motions, and it is an important first step toward identifying the appropriate legal remedy following a criminal conviction. If you are looking for help with a case involving a criminal appeal or have any questions, give us a call or reach out through our contact form, and we will get back to you as soon as we can!

Criminal Appeals FAQ

Am I allowed to file both a 440 motion and a 330 motion?

A 330 motion is filed after a guilty verdict but before the sentencing is given. A 440 motion is filed after the judgment. A guilty verdict is the finding that a defendant committed a crime, while a judgment is the court order and legal conclusion based on that finding, which leads to a sentencing. Speak to an experienced appeal attorney to learn more.

DISCLAIMER: PAST RESULTS DO NOT GUARANTEE FUTURE RESULTS. THIS IS NOT LEGAL ADVICE. DANIEL DUBOIS AND ANY DUBOIS LAW ATTORNEYS ARE NOT YOUR ATTORNEYS UNLESS RETAINED. INFORMATION SHARED HERE IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. EACH CASE IS UNIQUE AND IS DECIDED BASED ON ITS OWN FACTS AND MERITS AND CANNOT BE COMPARED TO OTHER CASES WHICH MAY HAVE HAD DIFFERENT FACTS AND CIRCUMSTANCES.