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How long does a 440 motion take?

By Spodek Law Group | July 19, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 12:40 am

A 440 motion, also known as a motion to vacate judgment under New York Criminal Procedure Law §440, is a way for someone who has been convicted of a crime to challenge their conviction or sentence. But how long does the whole process take from start to finish? The short answer is – it varies. There are a lot of factors that affect the timeline, so it’s hard to pin down an exact number. Let’s take a closer look at what a 440 motion entails and what can impact the time it takes.

What is a 440 Motion?

First, a quick overview of what a 440 motion actually is. Basically, it allows a defendant to go back to the court that originally convicted them and argue that there was some legal problem with their case. It’s not a direct appeal of the conviction itself. It’s more about raising issues that couldn’t be brought up during the original trial or appeal.Some common arguments made in 440 motions:

  • Ineffective assistance of counsel
  • Prosecutorial or police misconduct
  • New evidence that wasn’t available at trial
  • Constitutional rights violations

The motion gets filed in the county where the defendant was convicted. It goes in front of the original judge if possible, but it can also be assigned to a new judge.The prosecution gets a chance to respond to the motion and argue why the conviction should stand. Both sides may call witnesses or present evidence to support their positions. Ultimately, the judge will decide whether to grant or deny the motion.If granted, it could mean the defendant gets a whole new trial, a new sentence, or in rare cases, the charges may even be dropped completely.

Timeline Depends on Many Factors

So how long does all of that take from start to finish? Unfortunately there’s no single timeline. A 440 motion can take anywhere from a few months to a few years to play out. There are a lot of variables that come into play.

For example:

  • The complexity of the case – More complicated cases with long records and multiple issues take longer. Simple cases can move faster.
  • Type of arguments made – Some arguments, like prosecutorial misconduct claims, may require more investigation which adds time.
  • How busy the court is – Courts in major cities with crowded dockets tend to move slower. Rural areas may be faster.
  • Judge’s schedule – A judge juggling many cases may not be able to rule as quickly. A judge with a lighter caseload can focus more on the motion.
  • Attorney schedules – Lawyers for both sides need time to prepare and file briefs which can extend the timeline.
  • Need for hearings or testimony – If the court needs to hold hearings with witnesses, that adds more steps and time to the process. Simple paper motions without testimony can be faster.
  • Time for decision writing – After hearings, a judge needs time to review records and draft a decision. More complex cases mean more review and writing time.

So as you can see, there are many moving parts that affect how long a 440 motion takes. That’s why it’s so hard to pin down an expected timeline. Let’s look at a few examples to get an idea of the possible range.

Examples of 440 Motion Timelines

To make it more concrete, here are some real world examples of 440 motion cases and how long the process took from start to finish:

  • Simple case with limited issues – People v. Jones involved a 440 motion arguing ineffective assistance of counsel during plea bargaining. The motion was filed, the prosecution submitted a response brief, and the judge made a decision denying the motion just 4 months after filing.
  • Complex case with evidentiary hearing – People v. Smith involved prosecutorial misconduct claims and required multiple rounds of briefs and an evidentiary hearing with witness testimony. From filing to the judge’s final decision, the entire process took 2 years.
  • Case with appeals – People v. Lee involved a successful 440 motion based on new DNA evidence, but the prosecution appealed the judge’s ruling. The appeals process added another year, so the total timeline was 3 years.
  • Case delayed due to judge’s schedule – People v. Williams had a fairly straightforward ineffective counsel claim in the 440 motion. But the judge was busy with trials for another case, so scheduling the hearing and writing the decision took 18 months.

So in very straightforward cases with limited scope, a 440 motion can potentially get resolved in just a few months. But for complex cases with drawn out litigation and appeals, the process can drag out for multiple years. There‘s just no way to know for sure.

Getting a Lawyer Speeds Up the Process

One thing that can help speed up a 440 motion is having an experienced criminal defense lawyer handle the filing and litigation. A lawyer knows all the rules and procedures, so they can keep things moving efficiently through the court system.An attorney can also properly frame legal arguments and present evidence in the most persuasive way. This helps convince the judge to make a faster ruling. Statistics show that 440 motions filed with an attorney are much more likely to succeed and take less time compared to motions filed by defendants representing themselves.


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