Legal Question in Criminal Law in New York

If you have already been sentenced, NY CPL � 440.10(1)(b) authorizes the vacating of a judgment procured by duress, misrepresentation or fraud on the part of, among others, a court. Pursuant to CPL 440.10(1)(h) a plea can be vacated where the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

As stated by the Court of Appeals in People v Picciotti, �There can no longer be doubt that coram nobis lies to correct a judgment �based upon trickery, deceit, coercion or fraud . . . in the procurement of the plea . . . [To] deny a person an opportunity to be heard on proof that he was defrauded or coerced into pleading guilty to a crime would impair a constitutional right��. 4 N.Y.2d 340, 344 (1958).

However, a guilty plea will be upheld as valid if it was entered knowingly, voluntarily and intelligently. Brady v. United States., 397 U.S. 742, 748 (1970)(Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences).

�The voluntariness of [a defendant�s] plea can be determined only by considering all of the relevant circumstances surrounding it.� Brady v. United States, 397 U.S. 742, 749 (1970). Likewise, the Court of Appeals has elaborated that all the relevant circumstances surrounding the plea must reflect that the defendant knowingly, voluntarily and intelligently relinquished his or her rights. People v. Harris, 61 N.Y.2d 9, 16-17 (1983)(emphasis supplied).

If you have pleaded guilty but are awaiting sentencing, you would file a motion under CPL 220.60 which states

At any time before the imposition of sentence, the court in

its discretion may permit a defendant who has entered a plea

of guilty to the entire indictment or to part of the indictment,

or a plea of not responsible by reason of mental disease or

defect, to withdraw such plea, and in such event the entire

indictment, as it existed at the time of such plea, is restored.

CPL 220.60(3)

John Campbell, Esq.

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