New York statute
N.Y. Criminal Procedure Law § 440.40 — Motion to set aside sentence; by people
Current through 2026 legislative session (LBDC text via OpenLegislation as of 2026-07-17)
Part of Article 440: Post-judgment Motions, New York Criminal Procedure Law.
Full text of N.Y. Criminal Procedure Law § 440.40
Statutory text current through the 2026 legislative session (LBDC text via OpenLegislation as of 2026-07-17). This publication reproduces the text of the Consolidated Laws of New York as provided by the New York State Senate's Open Legislation service (Legislative Bill Drafting Commission statutory text); it is not the official statutes of the State of New York.
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.
Official sources
Legal terms used in this section
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