Until recently, there was a huge hurdle for criminal defendants who sought to attack their convictions based on innocence or errors, demonstrable by evidence outside the record: They had no right to counsel. A new law removes that hurdle.

The vehicle for these situations is not the direct appeal, which is based on a review of the trial record. Instead, a CPL 440.10 motion, asking the trial court to set aside the judgment of conviction, must be filed. The most common claim is ineffective assistance of counsel. Defective representation takes many forms, including the failure to make a dispositive motion; erroneous advice on immigration consequences; and the failure to do an investigation or use an expert.

Standards vs. Practice

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