440.4 Motion to set aside sentence; by people
In order for justice to prevail, it’s important that courts give sentences that are accurate. That means each sentence should be within the range of possible outcomes for the maximum and minimum penalties for the crime. It also means that the court must create an order of sentence that’s free of clerical errors and other deficiencies.
Errors that are unfair to the defendant
Even though most courts and judges do their best to avoid errors in sentencing, mistakes can happen. A mistake may give a defendant a sentence that’s too long based on the severity of the offense. A mistake might miscalculate time already served in jail or place the defendant on probation for longer than the maximum term of probation. When these mistakes occur, the defendant can bring a motion to the court to have the errors corrected and have the court issue a new sentence.
Errors that are unfair to the People
Errors in sentencing may also favor the defendant. Perhaps the judge forgets or refuses to impose a mandatory minimum term. Perhaps they order sentences for multiple offenses to run concurrently when the law calls for consecutive sentencing. When the state’s attorney believes that there’s an error in sentencing that’s unfair to the state, they can use New York rule of criminal procedure 440.40 in order to ask the court to look at the case and issue a new sentence.
New York has rules that govern how courts conduct criminal proceedings. These rules are called the Rules of Criminal Procedure. Rule 440.40 addresses when the People can motion the court to correct an invalid sentence.
New York Rules of Criminal Procedure Rule 440.40
A judge must fashion their sentence within the bounds of the law. They don’t have the power to make up any sentence that they think is fair. If the defendant’s conviction has a maximum penalty of one year, for example, the judge can’t decide that five years would be more fair. Both the defendant and the state’s attorney can bring a motion to correct a sentence if the judge steps outside their authority or if the court makes a clerical error that impacts the judgment in the case. Rule 440.40 allows the People to make a motion to correct an illegal or invalid sentence.
How the process works
The People have a strict limit of one year to bring a motion to correct an invalid sentence. In very rare cases, the People can bring their motion outside of the one-year time limitation. However, in the vast majority of cases, the People have one year to notice the error and bring it to the court’s attention. If they miss that window, the court may dismiss the request because it isn’t timely.
The state’s attorneys must also give the defendant notice of their request and time to respond. If the defendant is incarcerated, the state must make arrangements for the person to attend the hearing if the person wants to be present. If the court grants the People’s motion for a new sentencing, the defendant automatically gets a new window of time in order to bring an appeal.
The motion must raise new issues
A motion to set aside a sentence can address only new questions, new legal issues, or changes in the law. If the People bring a motion that’s based on questions or issues that the court already considered and dismissed at the initial sentencing, the court should dismiss the People’s motion to set aside the sentence. The court may only consider things they weren’t aware of at the original sentencing.
May 17, 2018
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