Can a Queens Post Conviction Lawyer Vacate a Conviction After a Guilty Plea?

Yes, in some cases. A Queens post conviction lawyer files a motion under New York Criminal Procedure Law section 440.10. It goes to the court that took the plea, at 125-01 Queens Boulevard in Kew Gardens. After a plea, the strongest grounds are bad legal advice, a missing deportation warning, and new DNA evidence.

Paul D. Petrus, Jr. & Associates, P.C. defends people in state and federal court across all five boroughs. Post-conviction work is part of that practice. Petrus Law reviews Queens pleas for 440 motions, sentence challenges, and appeals to the Second Department. Paul D. Petrus, Jr. is a Lifetime Member of the New York State Association of Criminal Defense Lawyers.

If a Queens guilty plea is still following you, call Petrus Law at (646) 733-4711 for a free consultation. The firm is available 24/7 for clients and offers Spanish-language representation.

Why a Queens Guilty Plea Is Hard to Undo After Sentencing

Timing decides almost everything here. Before sentencing, Criminal Procedure Law section 220.60 lets a judge allow you to take back a guilty plea, though the judge does not have to. Once the sentence is imposed, that option is gone. What remains is a motion to vacate the judgment, the core tool of post-conviction relief in Queens.

Criminal Procedure Law section 440.10 lets the court that entered the judgment vacate it. The statute allows the motion at any time after the judgment. A felony conviction usually comes from Queens County Supreme Court, Criminal Term. A misdemeanor usually comes from Queens Criminal Court. Both sit in the same building at 125-01 Queens Boulevard.

Two other tools get mixed up with this one. A direct appeal attacks what the record shows, and the notice of appeal is due within 30 days after sentence. Section 440.20 targets only an unlawful sentence and leaves the conviction in place. Which tool fits turns on what went wrong and where the proof of it lives. Sorting that out is the first job in any review.

Why New York Courts Rarely Hear Innocence Claims After a Plea

This is the rule that surprises families most. You can be innocent, have proof, and still be turned away because you pleaded guilty. How is that possible? In People v. Tiger, decided in 2018, the Court of Appeals held that a valid guilty plea presumptively forecloses a freestanding claim of actual innocence under section 440.10.

Lawmakers have tried to change that. Governor Kathy Hochul vetoed the Challenging Wrongful Convictions Act in December 2023. A revised version passed the State Senate in June 2026, but it has not become law. For now, the Tiger rule controls, and whether any exception reaches your case depends on the plea record and the evidence a lawyer can gather.

New Evidence Counts Only After a Trial Verdict

Paragraph (g) of section 440.10(1) covers newly discovered evidence. Its text applies to a judgment “based upon a verdict of guilty after trial.” A conviction by plea does not qualify. Paragraphs (c), (d), and (f) also describe evidence or conduct at a trial, so they rarely fit a plea case either. That leaves a person who pleaded guilty with a shorter list of grounds than most summaries suggest.

DNA Testing Remains Open After a Plea

Paragraph (g-1) is the exception. It covers forensic DNA testing performed after the judgment. For a defendant convicted after a guilty plea, the court must find a substantial probability that the defendant was actually innocent. That bar is higher than the reasonable probability standard used after a trial. It also helps only where biological evidence was collected and still exists.

Grounds a Queens Post Conviction Lawyer Can Still Use After a Plea

So what is left? Quite a lot, when the problem is how the plea was obtained rather than whether you did it. Section 440.10(1)(h) reaches any judgment obtained in violation of your rights under the state or federal constitution. The first two grounds below run through that paragraph. These grounds can apply after a guilty plea.

• Your lawyer gave wrong or missing advice about deportation, or failed you in another way that shaped the decision to plead.
• The judge did not warn you that a felony plea could lead to deportation.
• The plea was procured by duress, misrepresentation, or fraud by the court or a prosecutor, which paragraph (b) covers.
• Your part in the offense resulted from sex trafficking, labor trafficking, or trafficking in persons, under paragraph (i).
• Your conviction is an older misdemeanor or marijuana plea that paragraphs (j) and (k) now presume was not knowing and voluntary.

Each of these needs proof beyond the plea transcript, and the strength of that proof decides whether a judge orders a hearing. Queens gives the immigration grounds extra weight. The Department of City Planning’s 2026 report, The Newest New Yorkers, counts about 1.1 million foreign-born residents in Queens, or 48% of the borough.

Ineffective Assistance From the Lawyer Who Handled the Plea

A plea is only as sound as the advice behind it. If your lawyer misstated the law, ignored a defense, or never explained the consequences, the plea may rest on a constitutional violation. Bad advice alone does not win the motion. You also have to show a reasonable probability that you would have rejected the deal and gone to trial.

Deportation Advice Under Padilla v. Kentucky

In Padilla v. Kentucky, decided March 31, 2010, the U.S. Supreme Court held that defense lawyers must advise noncitizen clients about deportation risk. When the consequence is clear, the advice has to be clear too. A lawyer who said nothing, or called a plea safe when it was not, may have fallen below that standard. When your conviction became final decides whether this claim is available.

Convictions That Became Final After March 31, 2010

For a newer plea, the claim is live. The motion pairs proof of the bad advice with proof that deportation risk mattered to you. Affidavits about family ties, years in the country, and what you were told help carry that burden. How much weight a judge gives them depends on the whole record.

Convictions That Became Final Before Padilla

Older cases face a wall. In People v. Baret, decided in 2014, the Court of Appeals held that Padilla does not apply retroactively in state post-conviction proceedings. A plea that became final before March 31, 2010, needs a different ground. Paragraph (j), covered below, may still fit an old misdemeanor plea.

Claims That Could Have Been Raised on Appeal

Section 440.10(2) tells a judge to deny a motion when the issue sits on the record and could have been raised on direct appeal. That bar used to sink many ineffective assistance claims. On October 25, 2021, Chapter 501 of the Laws of 2021 added an exception for ineffective assistance of counsel to subdivisions (2)(b) and (2)(c). A Queens defendant who never appealed can still bring that claim in a 440 motion.

A Judge Who Skipped the Deportation Warning

Criminal Procedure Law section 220.50(7) requires a judge to warn a noncitizen, before accepting a felony plea, that the plea may lead to deportation. The same subdivision says a failure to warn does not affect the validity of the conviction. Read alone, that sentence misleads. In People v. Peque, decided in 2013, the Court of Appeals held that due process requires the warning anyway. A defendant who never got it must show a reasonable probability that he or she would have rejected the plea and gone to trial.

Older Misdemeanor and Marijuana Pleas

Two newer paragraphs shift the burden for certain old convictions. Paragraph (j) covers class A or unclassified misdemeanor convictions entered before it took effect. For a plea, it presumes the plea was not knowing, voluntary, and intelligent because of ongoing consequences, including immigration consequences. Paragraph (k) creates the same presumption for some older marijuana convictions under former Penal Law Article 221. It also covers the repealed loitering offense in section 240.37. The prosecution can rebut either presumption, so the result still turns on the facts.

How a 440 Motion Moves Through the Kew Gardens Courthouse

A 440 motion is a written motion filed on notice to the People, which here means the Queens County District Attorney’s office. Section 440.30 sets the procedure, and it sets traps too. A judge may deny the motion without a hearing if the papers lack sworn allegations supporting every essential fact.

Then comes a second trap. Under section 440.30(4)(d), the judge may also deny it when an essential fact comes only from you, with no other affidavit or evidence behind it. Those two rules shape the work long before anything is filed. How long the process takes varies with the court’s calendar and the issues raised, and no lawyer can promise a date.

Building the Record Before Anything Is Filed

Most of the work happens before the motion exists. The goal is a record that proves each fact the chosen ground requires. A Queens 440 motion usually draws on these papers.

• The plea minutes show exactly what the judge and the lawyers said on the record.
• A certificate of disposition is available at Queens Supreme Court, Criminal Term, in Room E121 for $10.
• The prior lawyer’s file holds notes, discovery, and any written plea advice.
• Immigration records matter whenever deportation is part of the claim.
• Sworn affidavits from the prior lawyer, relatives, or other witnesses support the facts you allege.

The court publishes where to request each record. The Queens Supreme Court criminal term FAQ lists the rooms and offices that handle records and transcripts.

Plea Minutes and the Court File in Room 710

For a finished case, the court sends you to the Record Room in Room 710. The plea transcript comes from the Principal Court Reporter’s office. Read it line by line. Did the judge give the deportation warning? Did your lawyer mention immigration on the record? Those answers decide which grounds the record already proves and which need outside proof.

Sworn Statements From Someone Other Than You

Because of section 440.30(4)(d), your own affidavit is rarely enough. The strongest support often comes from the lawyer who handled the plea. Some prior lawyers sign an affirmation describing what they did or did not say. Others refuse, and the motion then has to explain the gap with other proof. A relative who sat in on a meeting, a saved text message, or an interpreter’s notes can help fill it.

The Hearing and What a Judge Can Order

Section 440.30 requires a hearing when the papers raise a factual dispute the judge cannot settle on paper. At that hearing, you must prove every essential fact by a preponderance of the evidence. If the judge grants the motion, section 440.10(4) requires vacating the judgment. The court then dismisses the accusatory instrument, orders a new trial, or takes other appropriate action. A vacated plea can reopen the case rather than end it, so the plan for what comes next starts before the motion is filed.

If a Queens Judge Denies the Motion, a 30-Day Clock Starts

A denial is not always the last word, but there is no automatic appeal. Under section 450.15, you can appeal an order denying a 440.10 motion only if an appellate judge grants a certificate of leave under section 460.15. Section 460.10(4) gives you 30 days after the order is served on you to apply. Petrus Law handles appeals and 440 motions at both stages.

Felony matters from Queens go to the Appellate Division, Second Department, at 45 Monroe Place in Brooklyn. Appeals from Queens Criminal Court go to the Appellate Term at 141 Livingston Street in Brooklyn. Each deadline in this work runs from a different event, which is where people get caught.

• A notice of appeal from the judgment is due within 30 days after sentence under section 460.10(1)(a).
• A 440.10 motion has no fixed filing deadline, since the statute allows it at any time after judgment.
• A new evidence claim after a trial must be made with due diligence once the evidence is discovered.
• An application for leave to appeal a 440 denial is due within 30 days after the order is served.

Which of these dates applies to you depends on where your case stands today. Check them against the dates on your own paperwork, because a missed window is hard to reopen.

What the Queens DA’s Conviction Integrity Unit Can and Cannot Do

Queens has a second door that many people never hear about. District Attorney Melinda Katz created the Conviction Integrity Unit on the first day of her administration. It reviews claims of actual innocence and wrongful conviction in cases the office prosecuted. If the office finds a conviction wrongful, its policy is to resolve the case by agreement. That can mean a dismissal, a new plea, or a retrial. The unit’s own page sets out the basics.

• It considers any conviction obtained by the Queens County District Attorney’s Office.
• It gives priority to people who are incarcerated, on parole, or convicted of serious felonies.
• Requests must be in writing, from the convicted person or a lawyer, by mail, hand delivery, or email.
• A person without a lawyer can use the unit’s intake form.

Read the fine print, though. The unit states that a submission does not extend any appellate timelines and does not toll the statute of limitations for federal habeas relief. A CIU request is no reason to let a court deadline pass. Whether to pursue both paths at once depends on your evidence and your dates.

Vacating a Conviction Versus Sealing It in New York

People often ask for one of these when they need the other. Vacating a conviction under section 440.10 erases the judgment, and the case is then dismissed or reopened. Sealing under section 160.59 or the Clean Slate Act leaves the conviction in place and limits who can see it. The firm’s earlier post on sealing a criminal record in Brooklyn explains that process.

The difference matters most for immigration. Federal immigration law still counts a sealed conviction. Under the Board of Immigration Appeals decision in Matter of Pickering, it also ignores a vacatur granted only to avoid immigration hardship. The vacatur has to rest on a real legal defect in the plea. The post-conviction relief options that fit depend on why the plea was flawed. A noncitizen should also have an immigration lawyer review the plan.

Questions Queens Families Ask About Vacating a Guilty Plea

These short answers cover what families ask first when they start looking at an old Queens plea. Each one depends on details a lawyer has to check against the court file, including the plea minutes and the certificate of disposition. Use them to get oriented, then get the record reviewed.

Is There a Deadline to File a 440 Motion in New York?

Section 440.10 allows the motion at any time after the judgment, so there is no fixed filing deadline. Delay still costs you, because files get lost and witnesses forget. A new evidence claim after a trial must also be made with due diligence.

Can I File a 440 Motion While My Appeal Is Pending?

Sometimes. Section 440.10(2)(b) requires denial when the issue is on the record and can be reviewed on the pending appeal. Ineffective assistance claims are now an exception, and claims that depend on facts outside the record are not barred by that rule.

Does Vacating My Guilty Plea End the Case?

Not always. Under section 440.10(4), the court can dismiss the charges, order a new trial, or take other appropriate action. When the case goes back to court, the prosecution can make a new offer or try the case.

Do I Need a Lawyer to Contact the Queens Conviction Integrity Unit?

No. The unit accepts written requests from a convicted person or a lawyer, and it offers an intake form for people without counsel. A lawyer can still help frame the claim and protect the court deadlines that a request does not pause.

Can a 440.10 Motion Change My Sentence Instead of My Conviction?

No. A sentence-only challenge belongs under section 440.20, which sets aside an unlawful sentence. Section 440.10(2)(d) requires denial of a 440.10 motion that attacks only the sentence.

Talk to a Queens Post Conviction Lawyer at Petrus Law About Your Plea

An old plea can keep costing you years after the sentence ends. It can block a green card, a job, or a professional license. A Queens post conviction lawyer starts with the plea minutes and the court file, then matches what went wrong to a ground the statute recognizes.

Petrus Law handles 440 motions, appeals, and sentence challenges for people convicted in Queens courts. For new charges, the firm also defends clients through its criminal defense practice in Queens. Every review starts with the record, because the record decides which options are real.

Call (646) 733-4711 for a free consultation, or use the contact page to send the details of your case. No lawyer can guarantee that a conviction will be vacated. A careful review tells you whether a 440 motion, an appeal, or a CIU request is worth pursuing.

Petrus Law’s office is in The Graybar Building at 420 Lexington Avenue, Suite 2450, New York, NY 10170. The firm is available 24/7 for clients and offers Spanish-language representation.