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Navigating 440.47 Motions in New York Criminal Cases: An In-Depth Look

By Spodek Law Group | July 19, 2023
(Last Updated On: October 15, 2023)

Last Updated on: 15th October 2023, 01:47 pm

Navigating 440.47 Motions in New York Criminal Cases: An In-Depth Look

If you’re facing criminal charges in New York, you may be wondering about 440.47 motions and how they can potentially help your case. These motions can be complicated, but with some background knowledge, you’ll be better equipped to understand the process. This article provides an in-depth look at 440.47 motions, from what they are to how they work in real-life cases. I’ll walk through the basics in an easy-to-understand way, so you can feel empowered when navigating the legal system.

What is a 440.47 Motion?

Section 440.47 of New York’s Criminal Procedure Law allows people convicted of crimes to request that the court re-sentence them if they were victims of domestic violence at the time of the offense. Essentially, 440.47 motions assert that procedural errors, new evidence, misconduct, or other factors undermine the fundamental legitimacy of the original sentence[1].

The law recognizes that domestic violence can play a significant role in criminal behavior. If an abuse victim was convicted without consideration of the domestic violence they endured, 440.47 provides an avenue to re-evaluate the case through that lens.

When Can a 440.47 Motion Be Filed?

These motions can be filed by someone convicted of any crime except a Class A felony. There are no rigid time limitations, but the law does say motions should be made with “due diligence.” This generally means filing relatively soon after the conviction, rather than waiting many years.

What Must Be Shown to Win a 440.47 Motion?

To succeed on a 440.47 motion, the convicted person must show:

  • They were a victim of domestic violence at the time of the offense
  • The domestic violence was a significant contributing factor to the crime
  • A different sentence is appropriate based on the domestic violence circumstances

Domestic violence includes physical, sexual, or psychological abuse committed by a family member or intimate partner. The convicted person will need evidence like medical records, court documents, witness statements, or expert testimony to prove the domestic violence.[2]

How Does the Court Decide 440.47 Motions?

Judges have significant discretion in resentencing decisions under 440.47. They can consider any facts or circumstances relevant to imposing a new sentence. Some factors may include:

  • The severity of the domestic violence
  • The defendant’s role in the offense
  • The defendant’s criminal history
  • The defendant’s conduct while incarcerated
  • Statements from prosecutors, victims, or other interested parties

Hearings are typically held where both sides can present evidence and arguments about resentencing. The rules of evidence are relaxed at these hearings – hearsay can be considered, for example. After the hearing, the judge will decide whether the defendant’s sentence should be modified and if so, what the new sentence should be.[3]

What Kinds of Relief Are Possible?

440.47 motions can result in different types of relief:

  • Shorter prison sentence – The judge may decide to reduce the length of the defendant’s incarceration.
  • Probation – The judge could vacate the prison sentence entirely and impose a probationary term instead.
  • Conditional release – The defendant may be transitioned from prison to community supervision.
  • Resentencing – The judge has discretion to fashion a new sentence with different components.

The possibilities depend on the specifics of each case. The judge is not required to grant any relief at all if the evidence is unpersuasive.[4]

Recent 440.47 Cases and Results

Looking at how these motions have played out in real cases can provide helpful examples:

  • In People v. Williams, the defendant’s 440.47 motion was denied without a hearing. The judge found the defendant didn’t sufficiently allege she was a domestic violence victim at the time of her crime.[5]
  • In another 2021 case, however, the appeals court ruled a hearing should have been held on a defendant’s 440.47 motion. The defendant sufficiently alleged domestic abuse caused her substance abuse problems leading to her crime.[6]

These cases illustrate the importance of providing adequate supporting evidence when filing the motion. Judges will closely scrutinize the proof of domestic violence and its causal link to the crime.


440.47 motions are a powerful legal tool for New York defendants affected by domestic violence. By understanding the legal standards, gathering solid evidence, and presenting a compelling case, victims of abuse can potentially achieve a more just outcome. While the law presents challenges, with good legal guidance, 440.47 motions remain an option worth exploring.

If you or a loved one are considering a 440.47 motion, be sure to consult closely with an experienced criminal defense attorney. An lawyer can help assess the case facts, locate evidence of domestic violence, and craft persuasive arguments to the court. Although not easy to win, 440.47 motions open a door for possible redemption that should not be overlooked.

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