POST-CONVICTION RELIEF

In both the federal and state courts, you generally have an opportunity to appeal your case to a higher court, albeit under strict jurisdictional time-frames. But it is important to understand that appellate review is not the only way to ameliorate an unjust outcome, whether your conviction is the result of state or federal errors.

One of the most common methods for exonerating an individual wrongfully convicted under New York law is through a motion to vacate a conviction pursuant to Section 440.10 of the Criminal Procedure Law. In that statute, there are about ten grounds for vacating a wrongful criminal conviction, many of which permit the petitioner to create their own record of evidence beyond the original trial record.

This new evidence can include violations of constitutional rights, DNA results showing that the original conviction was unjust, or evidence corroborating the actual innocence of the petitioner. Exoneration law is not based on black and white rules of procedure like some cases may lead you to believe; it is an ever-growing field of factual and legal evolution, where new standards, new exceptions, and unwritten rules govern the deliberation of innocence on a case by case basis, despite what one case of yesteryear might say.

A skilled exoneration law firm looks at all the case law to develop a creative set of arguments in favor of full exoneration on the merits — focusing on substance and truth over mere formalities of past procedure.

Many of the false convictions we read about in the media were achieved through the filing of CPL 440.10 application to a trial court of appropriate state court of jurisdiction. If the trial court finds that the petitioner’s motion shows sufficient proof of an unjust conviction, the trial court may then vacate the conviction. The District Attorney’s office will then have an opportunity to seek continue detainment of the petitioner while they appeal the matter to a higher court. Upon a favorable finding by the higher court, the petitioner’s conviction is vacated, and if detained, the petitioner is released from prison.

Like an appeal, a CPL 440.10 exoneration application in New York state courts is time-consuming, because the law office must perform due diligence to properly investigate the case and obtain all relevant records.

Often times, the law office will work for three or more months to obtain all relevant case records from the county court, including discovery, transcripts, prior appellate paperwork, and so on.

After receiving all the relevant records, the law office will budget time to learn the case file through a team-driven approach to document review, investigation, and legal research; sometimes, this requires the attorney or their investigator to contact witnesses, hire experts, or visit the scene of the original incident. In consultation with the client, the law office will then put together a draft of exhibits and legal arguments that form the basis of the motion; any missing items or remaining questions are hopefully resolved at this point — some six months or more after the work began.

It is not uncommon for a CPL 440.10 action to take more than a year to file before a trial court, and even then, there may be new evidence or expert requirements that arise over the course of the investigation. Nonetheless, with the right level of research, investigative diligence, and planning, a CPL 440.10 state exoneration motion can mean the difference between prison and freedom.

Federal post-conviction relief

Many prisoners have found success in attacking their federal convictions through the post-judgment remedies available under either 18 USC 2254 or 18 USC 2255. It is nevertheless critical to note that a federal 2255 motion must be filed within a strict 1 year time limit from the date the judgment of conviction became final, with few exceptions.

Whether a 2255 motion — beyond the appellate relief you’re seeking — is the right kind of motion in your case should be based on a thoughtful consultation with our law office. Attorneys should review the facts of your case, ask you strategically relevant questions, and determine ultimately what evidence beyond the appellate record must be included in your motion for an effective outcome.

When you’re seeking to vacate an unjust conviction, the question inevitably becomes: what motion should I file — or is this an appeal-type thing?

It is helpful to understand that there are several kinds of habeas relief available in federal courts: (1) applications for relief under either 2254 challenge state court convictions on constitutional grounds, while (2) applications for relief under 2255 and 2241 challenge federal convictions on constitutional, and other grounds enumerated by law.

These federal remedies are often referred to as Federal Writs of Habeas Corpus, and are each governed by a complex web of both statutory and common law procedures. There are other federal post-judgment options, as well, including Writs of Error Coram Nobis, 2241 application, and other less common applications for relief, which may or may not be help in a state or federal conviction.

Choosing the right vehicle for federal relief requires the assistance of experienced counsel, because the laws governing post-conviction relief in the federal courts are based on complex procedures that leave little room for error.

Other IMPORTANT Post-judgment remedies

New York Post-Judgment Writs

At the state level, both article I, section 4 of the New York Constitution, as well as Article I, section 9 of the United States Constitution, which applies to the states, grant persons the right to petition the government for a Writ of Habeas Corpus — a demand to produce the body — or bring an individual detained unlawfully before a court.

Since there are many reasons why an individual may be detained unlawfully, the writ is generally viewed as an emergency motion — an immediate demand upon the state, or anyone with control over the individual who is presumably detained, to bring that individual into a courtroom for an explanation as to why his or her detainment is lawful. Where an individual has been arrested and detained without an arraignment or hearing before a Judge, or detained illegally, the Writ of Habeas Corpus may provide emergent relief to the wronged party, depending on the case and circumstances.

Less common, but no less effective for its purpose, the Writ of Coram Nobis is a motion asking a court to vacate or alter a judgment based on a fundamental error not necessarily appearing in the record, or more often than not, to allege ineffective appellate assistance of counsel.

The Writ of Coram Nobis, or “Writ of Error Coram Nobis” is a remedy for injustices that may not be covered under a statutory authority — it is a motion from the “common law” — from judicial doctrines interpreting the rights of the individual.

Over time, the Writ of Coram Nobis has become the de facto form of relief for those rare cases in which an individual has been denied effective assistance of appellate counsel. What may appear to you to be an ineffective appellate filing might differ greatly from that of an appellate court. For example, the New York Court of Appeals has found that sloppy briefs without citations to case law do not necessarily fall below a standard of meaningful assistance under New York law. On the other hand, a well-written brief that misses what may appear — in hindsight — to be a glaring trial error may be subject to a finding of ineffective assistance of counsel.

From time to time, the appellate courts in New York will grant a Writ of Error Coram Nobis on the basis of ineffective appellate assistance, and then allow a new appeal to be filed on a defendant’s behalf. Less often, the writ is used as a vehicle to handle any injustice that may not be resolved by statutory remedy; however, this is a less common view of the writ by many courts.

Seal Your Conviction in New York

Much more common, a Motion to Seal a Conviction, is a statutory remedy that allows an individual with a limited number of prior convictions to petition a trial court for sealing of their convictions pursuant to the factors listed in Section 160.59 of the Criminal Procedure Law. While sealing does not make the convictions go away, it often helps “hide” the conviction(s) from an employer performing a background check, or a public database, that would otherwise be easily available to the prudent researcher.

Even courts are sometimes unable to see sealed records absent good cause. Sealing does not restore many of the civil disabilities that a felony — or some misdemeanor — convictions might impose upon the individual (i.e. applying for a gun license), however, the relief can grant many individuals sufficient relief to earn some state licenses, avoid barriers to certain employment, and live a more normal life free of the chains that attach to past convictions. Sealing is granted at the discretion of the trial court based on the statutory factors in CPL 160.59, and many individuals may be eligible for an application to seal their conviction. The New York Courts correctly defines the generally criteria for sealing a conviction:

You are eligible for requesting sealing if (1) you have been crime-free for at least 10 years since your conviction and/or release, and (2) you have 2 convictions or less on your criminal record. This means no more than two misdemeanor convictions OR one felony and one misdemeanor conviction.

The ten year period starts from the date of conviction or release from prison, whichever is later.

You cannot have had any new criminal convictions or have a current criminal case pending.

Courts have the discretion to seal up to two convictions, only one of which may be a felony.

If you have more than 2 convictions, you may still be eligible if your convictions are related to the same one or two incidents. For example, if you were charged and convicted of multiple crimes during one incident, the court may decide to treat the multiple convictions as one conviction.

Expunged marijuana convictions do not count toward your total number of convictions. These are treated as if they never happened.

Expungement?

Expungement is rarely a remedy available under New York law, except in cases of low-level marijuana convictions and some low-level prostitution convictions; instead, we seek to vacate wrongful convictions through the statutory canvass of a CPL 440 motion. If your case is eligible for expungement, however, our attorneys can all but guarantee a positive outcome based on the statutory qualification(s) of your state law conviction. Do not be shy to call and ask.