N.Y. Criminal Procedure Law § 440.40: Motion to set aside sentence; by people

§ 440.40 Motion to set aside sentence; by people.

1. At any time not more than one year after the entry of a judgment,

the court in which it was entered may, upon motion of the people, set

aside the sentence upon the ground that it was invalid as a matter of

law.

2. Notwithstanding the provisions of subdivision one, the court must

summarily deny the 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

summarily 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 sentence, unless since the time of such determination there

has been a retroactively effective change in the law controlling such

issue. Despite such circumstance, however, the court, in the interests

of justice and for good cause shown, may in its discretion grant the

motion if it is otherwise meritorious.

4. The motion must be made upon reasonable notice to the defendant

and to the attorney if any who appeared for him in the last proceeding

which occurred in connection with the judgment or sentence, and the

defendant must be given adequate opportunity to appear in opposition to

the motion. The defendant has a right to be present at such proceeding

but may waive such right in writing. If he does not so waive it and if

he is confined in a prison or other institution of this state, the court

must cause him to be produced at the proceeding upon the motion.

5. 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.

6. Upon a resentence imposed pursuant to subdivision five, the terms

of which are more severe than those of the original sentence, the

defendant's time for taking an appeal from the judgment is automatically

extended in the manner prescribed in subdivision four of section 450.30.