2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title M - Proceedings After Judgment › Article 440 - Post-Judgment Motions › 440.20 - Motion to Set Aside Sentence; by Defendant.

§ 440.20  Motion to set aside sentence; by defendant.
1.  At  any time after the entry of a judgment, the court in which the
  judgment was entered may, upon motion of the defendant,  set  aside  the
  sentence  upon the ground that it was unauthorized, illegally imposed or
  otherwise invalid as a matter of law.   Where the  judgment  includes  a
  sentence of death, the court may also set aside the sentence upon any of
  the  grounds  set  forth  in  paragraph  (b),  (c),  (f),  (g) or (h) of
  subdivision one of section 440.10 as applied to  a  separate  sentencing
  proceeding  under  section 400.27, provided, however, that to the extent
  the ground or grounds asserted include one  or  more  of  the  aforesaid
  paragraphs  of  subdivision  one  of section 440.10, the court must also
  apply subdivisions two and three of section 440.10, other than paragraph
  (d) of subdivision two of such section, in determining  the  motion.  In
  the  event  the  court  enters an order granting a motion to set aside a
  sentence of death under this section, the court must either direct a new
  sentencing proceeding in accordance  with  section  400.27  or,  to  the
  extent that the defendant cannot be resentenced to death consistent with
  the  laws  of  this  state  or  the constitution of this state or of the
  United States, resentence the defendant  to  life  imprisonment  without
  parole  or  to  a  sentence  of imprisonment for the class A-I felony of
  murder in the first degree other than a sentence  of  life  imprisonment
  without  parole.  Upon  granting  the motion upon any of the grounds set
  forth in the aforesaid paragraphs of subdivision one of  section  440.10
  and  setting  aside  the  sentence,  the  court must afford the people a
  reasonable period of time, which shall not be less  than  ten  days,  to
  determine  whether  to  take  an appeal from the order setting aside the
  sentence of death. The taking of an  appeal  by  the  people  stays  the
  effectiveness  of  that  portion of the court's order that directs a new
  sentencing proceeding.
2.  Notwithstanding the provisions of subdivision one, the court  must
  deny  such  a  motion  when  the  ground  or  issue raised thereupon was
  previously determined on the merits upon an appeal from the judgment  or
  sentence,  unless  since  the time of such appellate determination there
  has been a retroactively effective change in the  law  controlling  such
  issue.
3.    Notwithstanding the provisions of subdivision one, the court may
  deny such a motion  when  the  ground  or  issue  raised  thereupon  was
  previously determined on the merits upon a prior motion or proceeding in
  a court of this state, other than an appeal from the judgment, or upon a
  prior  motion or proceeding in a federal court, unless since the time of
  such determination there has been a retroactively  effective  change  in
  the  law  controlling such issue.   Despite such determination, however,
  the court in the interest of justice and for good cause  shown,  may  in
  its discretion grant the motion if it is otherwise meritorious.
4.    An  order setting aside a sentence pursuant to this section does
  not affect the validity or status  of  the  underlying  conviction,  and
  after  entering such an order the court must resentence the defendant in
  accordance with the law.