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440.2 Motion to set aside sentence; by defendant.

January 20, 2018 New York Penal Code

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.

440.3 Motion to vacate judgment and to set aside sentence; procedure

Penal code 440.3 sets out the procedure by which a defendant may file a motion to vacate judgment or set aside sentence. Under this code the motion must be made in writing, with reasonable notice to the people, containing:

1. A recitation of every ground upon which the motion is based.

2. Sworn statements supporting the factual allegations. Sworn allegations may come from the defendant or one or more other persons. Sworn allegations must be based upon:

  • Personal knowledge of the affiant; or
  • Information and belief of the affiant. The affiant must identify both the source of information and grounds for belief.

3. Any supporting information or documentation.

What happens after the motion is filed?

The People’s Response: The people may file a response to the motion with the court and serve the defendant or the defendant’s attorney with the same. In this response, the people admit or deny the defendant’s allegations. The people may also attach evidence supporting the response.

Determination Whether a Hearing is Required: The court will review both the motion and the response, as well as all supporting evidence provided. The court will then determine whether a hearing is necessary to resolve questions of fact.

Hearing the Motion:

If the court determines there is a question of fact the court will set a hearing. As it relates to the motion to vacate, the defendant may, initially or during consideration of the motion, request the production of property gathered during investigation or prosecution of the case for inspection. In some circumstances DNA testing may also be allowed.

The court will grant a defendant’s request and direct the people to produce the property if:

1. The defendant was convicted of a felony after a trial;
2. The defendant properly filed a motion to vacate the judgment and seeks the property to prove actual innocence;
3. The court ordered an evidentiary hearing concerning the motion;
4. The defendant raised credible allegations in requesting the property;
5. The court finds that the property is probative in determining the actual innocence of the defendant; and
6. The request for the property is reasonable.

The court shall impose a protective order governing property produced where it deems appropriate.

The court will deny or limit the request if the court finds that granting the request would:

1. Threaten the integrity or chain of custody of the property; or
2. Threaten the integrity of the process or laboratory conducting DNA tests; or
3. Subject a person to possible harm, intimidation, reprisal, embarrassment, or other substantially negative consequences; or
4. Undermine law enforcement functions, including informant confidentiality; or
5. Go against public safety, or is otherwise not in the interests of justice.

The court will also deny any request for production of property if:

1. The defendant could obtain the property through other reasonable means; or

2. The defendant made the motion to vacate after 5 years from the date of conviction. This statute of limitation is tolled 5 years if the defendant is in custody because of the conviction for which the motion is filed, and the defendant demonstrates that:

  • The defendant diligently pursued the motion but for some extraordinary circumstance that prevented its filing;
  • Defendant, nor defendant’s attorney, knew of the facts supporting the motion, nor could said facts have been discovered through due diligence, prior to the statute of limitations expiring; or
  • All things considered, hearing the motion is in the interests of justice.



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