A threshold question faced by every criminal judge reviewing a motion pursuant to New York Criminal Procedure Law (CPL) §440.10 to vacate a judgment of conviction, or one pursuant to §440.20 to set aside a sentence, is whether to hold an evidentiary hearing. On the one hand, a hearing can flesh out the factual allegations underlying the motion and create a better record for review; on the other, because there is no statute of limitations on 440 motions, a hearing can turn into a fishing expedition at a time when memories have faded and evidence has become stale, and can unduly prolong the litigation.
Because the need for a hearing is so dependent on the facts alleged in the motion papers, judges are vested with broad discretion in determining whether to hold one.1 This article explores the considerations that tend to inform a judge’s exercise of that discretion, how a defendant can optimally frame a request for a hearing, and the factors that might determine a prosecutor’s position on that request.
Statutory Guideposts
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