![]() May More than One CPL 440 Motion Be Filed? Thus, while there is no firm deadline to file a New York CPL 440 motion, it is recommended that this motion be filed as soon as practicable. An undue delay in filing a state motion/writ may preclude the possibility of a future federal writ. To file a federal writ, a defendant must typically first file a state writ of habeas corpus (again, in New York this is typically done with a CPL 440 motion). There is a relatively short deadline to file a federal writ of habeas corpus. There is a second reason to not delay in filing a CPL 440 motion. 1998), the court denied a motion to vacate judgment, when a defendant delayed for 3 years before seeking to vacate the judgment. This is because the court may deny the motion if a defendant waits too long to assert his or her rights. It is advised, however, to file the motion as soon as possible. ![]() There is no deadline to file a CPL 440 motion. Is There a Deadline to File a CPL 440 Motion? If an issue was raised on appeal, the issue cannot be raised again in a CPL 440 motion. If it is not clear whether the record contains enough facts, a defendant may simultaneously file an appeal with a CPL 440 motion, and then join the two together. On direct appeal, arguments that are outside the record usually cannot be raised. Thus, this is known as a “collateral attack,” since the issues raised are not found in the Record. It would be fundamentally unfair to imprison a defendant due to these issues. ![]() The common denominator is that these issues were not raised at trial, and could not have been raised at trial. This can include acts or omissions of the defense lawyer (e.g., failure to investigate), the existence of new evidence, prosecutorial misconduct, juror misconduct, etc. A CPL 440 Motion, on the other hand, identifies issues that are not in the trial record.
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