Section 440.30. Motion to vacate judgment and to set aside sentence; procedure

1.  A  motion  to  vacate  a judgment pursuant to section 440.10 and a
  motion to set aside a sentence pursuant to section 440.20 must  be  made
  in  writing and upon reasonable notice to the people. Upon the motion, a
  defendant who is in a position adequately to raise more than one  ground
  should  raise  every  such ground upon which he intends to challenge the
  judgment or sentence. If the motion  is  based  upon  the  existence  or
  occurrence  of  facts,  the motion papers must contain sworn allegations
  thereof, whether by the defendant or by another person or persons.  Such
  sworn allegations may be based upon personal knowledge of the affiant or
  upon  information  and  belief,  provided  that  in the latter event the
  affiant must state the sources of such information and  the  grounds  of
  such  belief.  The  defendant may further submit documentary evidence or
  information supporting or tending to  support  the  allegations  of  the
  moving papers. The people may file with the court, and in such case must
  serve  a  copy  thereof  upon  the  defendant or his counsel, if any, an
  answer denying or admitting any or all of the allegations of the  motion
  papers,  and  may  further  submit  documentary  evidence or information
  refuting or tending to refute such allegations. After all papers of both
  parties  have  been  filed,  and  after  all  documentary  evidence   or
  information,  if  any,  has  been submitted, the court must consider the
  same for the purpose of ascertaining whether the motion is  determinable
  without a hearing to resolve questions of fact.
    1-a.  (a)  Where  the defendant's motion requests the performance of a
  forensic  DNA  test  on  specified  evidence,  and  upon   the   court's
  determination that any evidence containing deoxyribonucleic acid ("DNA")
  was  secured in connection with the trial resulting in the judgment, the
  court shall grant the application  for  forensic  DNA  testing  of  such
  evidence upon its determination that if a DNA test had been conducted on
  such  evidence,  and  if  the  results  had  been  admitted in the trial
  resulting in the judgment, there exists a  reasonable  probability  that
  the verdict would have been more favorable to the defendant.
    (b) In conjunction with the filing of a motion under this subdivision,
  the   court  may  direct  the  people  to  provide  the  defendant  with
  information in the possession  of  the  people  concerning  the  current
  physical  location  of  the  specified  evidence  and  if  the specified
  evidence no longer exists or the  physical  location  of  the  specified
  evidence is unknown, a representation to that effect and information and
  documentary evidence in the possession of the people concerning the last
  known  physical  location  of  such  specified  evidence.  If there is a
  finding by the court that the specified evidence no longer exists or the
  physical  location  of  such  specified  evidence   is   unknown,   such
  information  in  and  of  itself  shall  not  be a factor from which any
  inference unfavorable to the  people  may  be  drawn  by  the  court  in
  deciding  a  motion  under  this  section.  The  court, on motion of the
  defendant, may also issue a subpoena duces tecum directing a  public  or
  private  hospital,  laboratory or other entity to produce such specified
  evidence in its possession and/or information and  documentary  evidence
  in  its  possession concerning the location and status of such specified
  evidence.
    2. If it appears by conceded  or  uncontradicted  allegations  of  the
  moving  papers or of the answer, or by unquestionable documentary proof,
  that there are circumstances which require denial  thereof  pursuant  to
  subdivision  two of section 440.10 or subdivision two of section 440.20,
  the court must summarily deny the motion. If it appears that  there  are
  circumstances authorizing, though not requiring, denial thereof pursuant
  to  subdivision  three of section 440.10 or subdivision three of section

  440.20, the court may in its discretion either (a)  summarily  deny  the
  motion, or (b) proceed to consider the merits thereof.
    3.  Upon considering the merits of the motion, the court must grant it
  without conducting a hearing and vacate the judgment or  set  aside  the
  sentence, as the case may be, if:
    (a) The moving papers allege a ground constituting legal basis for the
  motion; and
    (b)  Such  ground, if based upon the existence or occurrence of facts,
  is supported by sworn allegations thereof; and
    (c) The sworn allegations of fact essential to support the motion  are
  either   conceded   by  the  people  to  be  true  or  are  conclusively
  substantiated by unquestionable documentary proof.
    4. Upon considering the merits of the motion, the court  may  deny  it
  without conducting a hearing if:
    (a)  The  moving  papers  do  not allege any ground constituting legal
  basis for the motion; or
    (b) The motion is based upon the existence or occurrence of facts  and
  the  moving  papers  do  not contain sworn allegations substantiating or
  tending  to  substantiate  all  the  essential  facts,  as  required  by
  subdivision one; or
    (c)  An  allegation  of  fact  essential  to  support  the  motion  is
  conclusively refuted by unquestionable documentary proof; or
    (d) An allegation of fact essential  to  support  the  motion  (i)  is
  contradicted  by  a  court record or other official document, or is made
  solely by the defendant and is unsupported by  any  other  affidavit  or
  evidence, and (ii) under these and all the other circumstances attending
  the  case,  there  is  no reasonable possibility that such allegation is
  true.
    5. If the court does not determine the motion pursuant to subdivisions
  two, three or four, it must conduct a hearing and make findings of  fact
  essential  to the determination thereof. The defendant has a right to be
  present at such hearing but may waive such right in writing. If he  does
  not  so  waive it and if he is confined in a prison or other institution
  of this state, the court must cause him to be produced at such hearing.
    6. At such a hearing, the defendant has the burden  of  proving  by  a
  preponderance  of  the  evidence  every  fact  essential  to support the
  motion.
    7. Regardless of whether a hearing  was  conducted,  the  court,  upon
  determining  the  motion,  must  set forth on the record its findings of
  fact, its conclusions of law and the reasons for its determination.