- Court
- New York Supreme Court, Appellate Division, Third Department
- Case
- People v. Green
- Date
- May 28, 2026
- Slip Op. No.
- 2026 NY Slip Op 03333
Background
In early June 2018, police officers responded to 911 calls reporting shots fired near 80 West Pier Pont Street in Kingston, Ulster County. Following an investigation, defendant Kevin Green was arrested and charged by indictment with criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, and reckless endangerment in the first degree. Green pleaded guilty to criminal possession of a weapon in the second degree in full satisfaction of the indictment and waived his right to appeal both orally and in writing. He was sentenced as a second felony offender to seven years in prison followed by five years of postrelease supervision. Years later, Green moved to vacate the conviction pursuant to CPL 440.10, which the People opposed. County Court denied the motion without a hearing based on Green’s failure to provide any nonrecord evidence in support of his arguments. Green appealed both the original conviction and, by permission, the denial of the CPL 440.10 motion.
Holding
The Appellate Division affirmed both the judgment of conviction and the denial of the CPL 440.10 motion. On the direct appeal, the Court held that Green’s claims were encompassed by his valid and unchallenged waiver of the right to appeal. On the CPL 440.10 motion, the Court found that County Court properly denied the motion without a hearing because Green failed to submit any nonrecord evidence in support of his claims. Under CPL 440.10, a motion to vacate based on claims outside the trial record must be supported by sworn allegations of fact, and a movant who relies solely on the existing record without providing new evidence fails to meet the threshold showing required for a hearing.
Takeaways
A valid waiver of the right to appeal forecloses review of most claims arising from the plea and sentence, and a defendant who does not challenge the waiver’s validity on appeal cannot obtain review of the underlying issues. A CPL 440.10 motion to vacate a conviction must be supported by nonrecord evidence—such as sworn affidavits, documents, or other materials not contained in the existing court record—to warrant a hearing. A motion that merely reargues issues apparent from the existing record without presenting new evidence will be summarily denied.
Why It Matters
This decision reinforces two important principles of criminal appellate practice. First, appeal waivers remain a powerful tool for limiting post-conviction review, and defendants who wish to challenge their convictions after entering a guilty plea must first challenge the validity of the appeal waiver itself. Second, CPL 440.10 motions serve a specific purpose—presenting evidence outside the trial record that could not have been raised on direct appeal. Movants and their attorneys must understand that the motion requires new evidence, not a repackaging of arguments that could have been raised on direct appeal. Pro se defendants filing CPL 440.10 motions should be advised that unsupported factual allegations will not suffice to obtain a hearing.