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:

  1. 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;
  2. Amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant;
  3. Changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney;
  4. Changing a sentence as authorized by the Code of Criminal Justice;
  5. Correcting a sentence not authorized by law including the Code of Criminal Justice;
  6. Changing a custodial sentence to permit entry into the Intensive Supervision Program; or
  7. 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.

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