CPL 440 Volume 2 Flashcards
440.20 Motion to set aside sentence; by defendant
- At any time after entry of judgment and upon motion of defendant, court may set aside the sentence upon ground that it was unauthorized, illegally imposed or invalid as a matter of law.
If the court sets aside a _______________, court must direct a new sentencing proceeding, or re-sentence the defendant to life imprisonment without parole or to a sentence of imprisonment for the class A-1 felony of murder 1 other than a sentence of life imprisonment without parole.
Court must afford people not less than _______ to determine whether to take an appeal from the order setting aside the sentence of death.
sentence of death……. 10 days
440.20 Motion to set aside sentence; by defendant
- Notwithstanding subdivision one, court MUST deny motion if ground was previously determined on _______ .
- Notwithstanding subdivision one, court MAY deny motion if ground was previously determined by prior motion (EXCEPTION: interests of justice).
- An order setting aside a sentence does not affect the validity of the __________.
appeal……..conviction
440.30 Motion to set aside judgment and sentence
- Motion to vacate a judgment (440.10) and to set aside a sentence (440.20) must be in writing and with reasonable notice to the people.
All reasonable grounds must be included in _________ motion.
The court must determine the motion (with a hearing OR without a hearing) and must state on the record its findings of fact, its conclusions of law, and the reasons for its determination.
one
440.30 Motion to set aside judgment and sentence
- If there are conceded or uncontradicted allegations, or unquestionable documentary proof requiring denial of the motion, the court (MUST/MAY) summarily deny the motion
MUST
440.30 Motion to set aside judgment and sentence
3 Court MUST grant motion without conducting a hearing and vacate the judgment or set aside the sentence if:
a) moving papers allege a _________ legal basis
b) ground is supported by sworn allegations
c) sworn allegations supporting motion are conceded by the people or substantiated by documentary proof
constitutional
440.30 Motion to set aside judgment and sentence
4 Upon considering the merits of the motion, the court MAY deny it without a hearing if:
a) moving papers do not allege any ground constituting _____________ , or
b) ground is not supported by sworn __________
c) allegations of fact supporting motion are conclusively refuted by _________
d) an allegation of fact to support the motion:
1) is contradicted by court record or other official document, or is made solely by the defendant and is not supported by any other affidavit or evidence.
2) There is no reasonable possibility that such an allegation is true.
legal basis……. Allegations…….. documentary proof
440.30 Motion to set aside judgment and sentence
- If motion is not determined without __________, the Court must conduct a hearing and make findings of fact.
Defendant has right to be _______ but may waive such right in writing.
- Defendant has burden of proving by a _____________.
A hearing…. Present………. preponderance of the evidence
140.40 Motion to set aside sentence; by people (read statute)
- At any time not more than ____________ after entry of judgment, court may set aside a sentence upon motion of the people that the sentence was invalid as a matter of law.
- Notwithstanding subdivision one, court (MUST/MAY) summarily deny motion if ground was previously determined on the merits on an appeal.
- Notwithstanding subdivision one, court MAY summarily deny motion if ground was previously determined by prior motion (EXCEPTION: interests of justice).
ONE YEAR…… MUST
140.40 Motion to set aside sentence; by people (read statute)
- Reasonable notice of motion to set aside sentence by people must be given to defendant and defendant’s attorney.
Defendant has right to be__________ at hearing, but may waive right.
present
140.40 Motion to set aside sentence; by people (read statute)
- Order setting aside sentence does not affect validity of conviction and court must _________ the defendant.
re-sentence
140.40 Motion to set aside sentence; by people (read statute)
- If re-sentence is more _________ than original sentence, defendant’s time for taking an __________is automatically extended.
When as a result of a successful appeal by the people from a sentence, the defendant receives a resentence the terms of which are more severe than those of the original or reversed sentence, the defendant, if he has not taken an appeal from the judgment, may, even though the period for doing so has expired, take such an appeal by filing and serving a notice of appeal, or an affidavit of errors as the case may be, within ________ after imposition of the resentence.
Upon such an appeal, only the conviction is reviewable; and any appellate challenge to the resentence must be made upon a separate appeal therefrom.
Severe……. Appeal……thirty days
440.46 Motion for resentence; certain controlled substance offenders (read statute)
(Bard)
Concise Summary:
1. A person convicted of a certain class B felony before 2005 can apply for a determinate sentence, but only if not convicted of an exclusion offense in the previous 10 years.
- The application can also include requesting determinate sentences for other related felonies sentenced at the same time.
- The court will consider the person’s prison behavior, including participation in programs and disciplinary history. Inability to participate due to program limitations won’t be considered negatively.
- County law provisions on motion preparation and appeals apply.
- Exclusion offenses include:
Violent felonies or other offenses ineligible for merit time allowance.
Second or persistent violent felonies.
Section deals with defendants convicted of certain drug offenses prior to a certain date who may make a motion for resentence.
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440.46 Motion for resentence; certain controlled substance offenders (read statute)
Section deals with defendants convicted of certain drug offenses prior to a certain date who may make a motion for resentence.
(Bard BLIND)
- A person convicted of a certain class B felony before 2005 can apply for a determinate sentence, but only if not convicted of an exclusion offense in the previous _______ years.
- The application can also include requesting determinate sentences for other related felonies sentenced at the same time.
- The court will consider the person’s prison behavior, including participation in programs and disciplinary history. Inability to participate due to program limitations won’t be considered negatively.
- County law provisions on motion preparation and appeals apply.
- Exclusion offenses include:
Violent felonies or other offenses ineligible for merit time allowance.
Second or persistent violent felonies.
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(NEW) 440.46-a Motion for resentence; persons convicted of certain marihuana offenses. (NO NOTES)
Notification:
When a person is serving a sentence for a conviction by trial verdict or guilty plea, under former PL 221 (marijuana offenses), and such persons’ conduct as alleged in the accusatory instrument and/or shown by the guilty plea or trial verdict would not have been a crime under PL 222 (marijuana offenses), had PL222 (marijuana offenses) been in effect at the time of such conduct, then the chief administrative judge of the state of New York shall, automatically ____________, ____________, and__________ such conviction in accordance with section CPL 160.50, and the office of court administration shall immediately notify the state division of criminal justice services, state department of corrections and community supervision and the appropriate local correctional facility which shall immediately effectuate the appropriate relief.
vacate, dismiss and expunge
(NEW) 440.46-a Motion for resentence; persons convicted of certain marihuana offenses. (NO NOTES)
Such notification to the division of criminal justice services shall also direct that such agency notify all relevant police and law enforcement agencies of their duty to destroy and/or mark records related to such case in accordance with CPL 160.50.
Nothing in this section shall prevent a person who believes his or her sentence is required by this section to be vacated, dismissed and/or expunged from filing a petition with the court to effectuate all appropriate relief.
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