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Jan 24, 2018

440.6 Notification of invalid sentences of probation

Overview of Notification of Invalid Sentence of Probation in New York Code of Criminal Procedure
The New York Code of Criminal Procedure includes a section that addresses a situation in which an invalid sentence of probation was ordered in a criminal case in the state in Article 440.40. There are specific requirements in this provision that must be followed in the event that an invalid sentence of probation appears to have been ordered by a court.

Requirements of New York Code of Criminal Procedure in Regard to Invalid Probation Sentence

Pursuant to Article 440 of the New York Code of Criminal Procedure, the director of the probation department has a specific duty to take action is a discovery is made that a person appears to have received an invalid sentence of probation. The director of the probation department must notify the prosecuting attorney in the county where the person with the suspected invalid probation sentence was convicted.

When the prosecuting attorney receives this notification from the probation department, the prosecuting attorney must initiate an immediate investigation of the matter. If the prosecuting attorney determines that the probation sentence is invalid as a matter of law, he or she must file a motion to vacate the sentence pursuant to Article 440.40 of the New York Code of Criminal Procedure.

Specifics of Motion to Vacate for Invalid Probation Sentence

A motion to vacate an invalid sentence of probation must be filed within one year of the entry of judgment in a particular case. Typically, the entry of judgment is the date that a criminal defendant was sentenced to a term of probation in a criminal case.

The court will summarily dismiss this type of motion of the issue raised in it was previously addressed on an appeal from a judgment in the underlying case. One exception exists. If there has been a change in the law subsequent to the appeal, this type of motion would not summarily be dismissed by the court.

The Code requires that the defendant, and his or her legal counsel in the initial case, be provided notice and a copy of the motion to vacate. The defendant has the right to attend any court proceeding that is conducted in regard to the motion to vacate. With that said, he or she is not obligated to attend such a proceeding. In addition, the defendant, or his or her legal counsel, does have the right to file a response to a motion to vacate based upon a contention that a probation sentence is invalid, if desired.

Resentencing of Defendant

If the probation sentence is vacated, the court resentences the defendant. In many instances, the sentence will be harsher or more severe than the initial sentence of probation previously handed down in a case. If a defendant does receive a more severe sentence after a motion to vacate is granted, that defendant is entitled to an automatic extension of the time period to pursue an appeal of the matter, as set forth in Article 450.30 of the New York Code if Criminal Procedure. If the defendant for some reason received a lighter sentence, it is not likely he or she would consider appealing the determination of the court. Thus, this Code section is not applicable.

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Phone

888-977-6335