N.Y. Criminal Procedure Law § 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.