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440 Motion denied, Judge incorrectly states reasons for denial. Can I contact the Judge or his attorney to make him aware ?
Anonymous9 views5 answers
The judge got several issues wrong in the case. He misstates the sentence he actual gave. Incorrectly states that all DNA was tested and will not be retested and that testing the DNA would not effect the outcome of the trial. There are 3 untested buccal swabs, fibers & a human hair. Judge states that audio was available before trial when the district attorney said it didn't exist or was withheld from the defense. Judge claims no Alfred plea was discussed, we never claimed and Alfred plea. The plea deal was conveyed 6 yrs state prison 5 yrs shock probation which Judge says is not a legal sentence. Judge claims the offer was 6 months shock which is wrong because he denied shock at sentencing. Can I send the judge a letter with trial transcripts showing the errors?
You now have two options: (1) request to reargue the motion (rarely granted); or (2) appeal to the Appellate Division. You should have your attorney file the notice of appeal and hire appellate counsel to discuss these issues for your appeal.
You can make a motion to the Court asking for reconsideration and state why you are seeking reconsideration or you can make an application to the appropriate Appellate Court requesting Leave to Appeal the denial of the 440 Motion and state why the Court should grant the application. There is not an automatic right to appeal the denial of a 440 Motion.
