Motion to Correct Criminal Sentence
Criminal and Immigration Lawyer
The immigration consequences of a criminal conviction may be very harsh.
Temporary Visa holders and even long-term lawful permanent residents (Green
Card holder) with immediate U.S. citizen relatives can be removed from
the United States and be barred from ever coming back.
A non-citizen who has been convicted of a crime that affects his or her
immigration status can sometimes remedy the situation through a motion
for post-conviction relief, such as a motion to correct a criminal sentence
can be an effective way to eliminate grounds of deportability of a non-citizen
under U.S. immigration laws.
Federal law provides that any State or Federal conviction that falls into
one of the categories of offenses enumerated in 8 U.S.C. § 1001(a)(43)
is an “aggravated felony”. There is generally no waiver for
an aggravated felony conviction.
A crime of violence for which the term of imprisonment is at least one
year is an aggravated felony. Often, criminal defense lawyers fail to
advise non-citizen clients of the extremely severe immigration consequences
of an aggravated felony conviction. Sometimes, it is possible to file
a motion to correct a criminal sentence to reflect a term of imprisonment
of 364 day, so that the conviction can’t be considered an aggravated felony.
Generally, for a court to grant a motion to correct a criminal sentence
there must be new evidence that:
- Was unknown to the trial judge at the time the original sentence was imposed;
- Frustrates the aim or goal of the original sentence;
- Did not exist at the time of sentencing;
- Was unknowingly disregarded by all parties.
Correcting a Criminal Sentence in New York
In New York, article 440.10 of the CPL allows a defendant to make a motion
to vacate a criminal judgment. However, a
440.10 motion can also be filed to modify a criminal conviction by reducing it to a
lesser offense, or reduce the term of incarceration. In such case, the
court must re-sentence the defendant accordingly.
Correcting a Criminal Sentence in New Jersey
In New Jersey, a motion to reduce or change a criminal sentence can be
filed not later than 60 days after the date of the judgment of conviction.
However, a motion may be filed and an order may be entered at any time
if the motion is:
- Changing a custodial sentence to permit entry of the defendant into a custodial
or non-custodial treatment or rehabilitation program for drug or alcohol abuse;
- Amending a custodial sentence to permit the release of a defendant because
of illness or infirmity of the defendant;
- Changing a sentence for good cause shown upon the joint application of
the defendant and prosecuting attorney;
- Changing a sentence as authorized by the Code of Criminal Justice;
- Correcting a sentence not authorized by law including the Code of Criminal Justice;
- Changing a custodial sentence to permit entry into the Intensive Supervision
- Changing or reducing a sentence when a prior conviction has been reversed
on appeal or vacated by collateral attack.
If you a non-citizen and were convicted of a serious crime, speak to
criminal immigration lawyer
to see if there are grounds for filing a motion to correct the criminal
sentence and eliminate the immigration consequences of that criminal conviction.