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Jan 20, 2018

440.2 Motion to set aside sentence; by defendant.

Your right to fair treatment in the criminal courts doesn’t end after your conviction and sentence. You have the right to correct errors in the judgment even after you receive your sentence. In fact, you can use New York Rule of Criminal Procedure 440.20 to ask the court to set aside your sentence.

What are the grounds to set aside a sentence?

The court may set aside a sentence if the sentence is unauthorized, improper or illegal. If the court makes an error and enters a sentence that they don’t have the authority to enter, you can use New York rule of criminal procedure 440.20 to ask the court to correct it. The purpose of the rule is to allow defendants to get relief from the courts when they receive a sentence that’s outside the bounds of possible outcomes.

For example, a motion to set aside a sentence might be appropriate where the judge imposes more than the maximum sentence. If the maximum penalty for a case is two years and the court imposes a term of four years in prison, a motion to set aside the sentence is appropriate. A request to set aside a sentence may also be appropriate where a sentence includes a requirement of probation that’s outside of the court’s authority for the offense.

How do I file my request?

To ask the court to set aside the sentence, you must file a request in writing. The request must state all of the grounds that exist to set aside the sentence. The request should cite the law, the changes in the law or the prior case decisions that support the claim. You must also give the state’s attorney notice of the request.

The motion to set aside the sentence should be based on issues that the court hasn’t previously considered. For example, you may have argued during your original sentencing that it’s unconstitutional to impose a certain sentence. If the court rejects your argument, you may appeal your sentence, but you shouldn’t argue the same issue when you make a motion to set aside the sentence. In a motion for a new sentence, the court typically only considers new issues and information. However, the court has some discretion. In very clear cases, the court may grant your motion for a new sentencing even if it’s based on issues the court has already considered.

A retroactive change in the law

Rule 440.2 allows you to petition for a change in sentencing if there’s a retroactive change in the law that applies to the case. That means if a higher court issues a case that sets a precedent that applies to you, you may be able to appeal for a resentencing based on the change in the law. It’s important to carefully review new cases to determine if the courts make a ruling or decision that may be helpful to your case.

What happens if the court sets my sentence aside?

If the court sets your sentence aside, you’ll have the opportunity for a new sentencing. The sentencing process starts over. You can ask the judge for a different sentence and give your reasons and arguments. You may receive the same sentence again, or the court may impose a different sentence. If you think that you may want to set your sentence aside, an experienced New York criminal lawyer can help you understand whether you have the legal grounds to make the request. They can help you prepare and file your request and help you do everything that you can to maximize your chances for success.

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