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Article 440 - NY Criminal Procedure Law

 POST - JUDGMENT MOTIONS
440.10 Motion to vacate judgment.
440.20 Motion to set aside sentence; by defendant.
440.30 Motion to vacate judgment and to set aside sentence; procedure.
440.40 Motion to set aside sentence; by people.
440.46 Motion for resentence; certain controlled substance offenders. 
440.50 Notice to crime victims of case disposition. 
440.55 Notice to education department where a licensed professional
             has been convicted of a felony. 
440.60 Notification of invalid sentences of probation. 
440.65 Notice to child protective agency of conviction for certain
             crimes against a child.
440.70  Notice to the secretary of state when false financing
             statement filed.

S 440.10 Motion to vacate judgment.
  1.  At  any  time after the entry of a judgment, the court in which it
  was entered may, upon motion of the defendant, vacate such judgment upon
  the ground that:
    (a) The court did not have jurisdiction of the action or of the person
  of the defendant; or
    (b) The judgment was procured by duress, misrepresentation or fraud on
  the part of the court or a prosecutor or  a  person  acting  for  or  in
  behalf of a court or a prosecutor; or
    (c) Material evidence adduced at a trial resulting in the judgment was
  false  and  was,  prior  to  the  entry  of  the  judgment, known by the
  prosecutor or by the court to be false; or
    (d) Material evidence adduced by the people at a  trial  resulting  in
  the  judgment  was procured in violation of the defendant's rights under
  the constitution of this state or of the United States; or
    (e) During the proceedings resulting in the judgment,  the  defendant,
  by reason of mental disease or defect, was incapable of understanding or
  participating in such proceedings; or
    (f)  Improper  and  prejudicial  conduct  not  appearing in the record
  occurred during a trial resulting in the judgment which conduct,  if  it
  had  appeared  in  the  record,  would  have  required a reversal of the
  judgment upon an appeal therefrom; or
    (g) New evidence has been discovered since the  entry  of  a  judgment
  based  upon  a  verdict of guilty after trial, which could not have been
  produced by the defendant at the trial even with due  diligence  on  his
  part  and which is of such character as to create a probability that had
  such evidence been received at the trial the  verdict  would  have  been
  more  favorable to the defendant; provided that a motion based upon such
  ground must be made with due  diligence  after  the  discovery  of  such
  alleged new evidence; or
    (g-1)  Forensic DNA testing of evidence performed since the entry of a
  judgment, (1) in the case of a defendant convicted after a guilty  plea,
  the   court  has  determined  that  the  defendant  has  demonstrated  a
  substantial probability that the defendant was actually innocent of  the
  offense  of  which  he  or  she  was  convicted, or (2) in the case of a
  defendant convicted after a trial, the court has determined  that  there
  exists  a  reasonable  probability that the verdict would have been more
  favorable to the defendant.
    (h) The judgment was obtained in violation of a right of the defendant
  under the constitution of this state or of the United States; or
    (i) The judgment is a conviction where the arresting charge was  under
  section  240.37 (loitering for the purpose of engaging in a prostitution
  offense, provided that the defendant was not alleged to be loitering for
  the purpose of patronizing a prostitute or  promoting  prostitution)  or
  230.00   (prostitution)   of   the   penal   law,  and  the  defendant's
  participation in the offense was a result of having been a victim of sex
  trafficking under section 230.34 of the  penal  law  or  trafficking  in
  persons  under  the  Trafficking  Victims  Protection Act (United States
  Code, title 22, chapter 78); provided that
    (i) a motion under this paragraph shall be made  with  due  diligence,
  after the defendant has ceased to be a victim of such trafficking or has
  sought  services  for victims of such trafficking, subject to reasonable
  concerns for  the  safety  of  the  defendant,  family  members  of  the
  defendant,  or other victims of such trafficking that may be jeopardized
  by the bringing of such motion, or for other reasons consistent with the
  purpose of this paragraph; and
    (ii) official documentation of the defendant's status as a  victim  of
  sex  trafficking  or  trafficking  in persons at the time of the offense
  from a  federal,  state  or  local  government  agency  shall  create  a
  presumption  that  the  defendant's  participation  in the offense was a
  result of having been a victim of  sex  trafficking  or  trafficking  in
  persons,  but  shall  not  be  required for granting a motion under this
  paragraph.
    2. Notwithstanding the provisions of subdivision one, the  court  must
  deny a motion to vacate a judgment when:
    (a)  The  ground  or  issue  raised  upon  the  motion  was previously
  determined on the merits upon an appeal from the judgment, unless  since
  the  time of such appellate determination there has been a retroactively
  effective change in the law controlling such issue; or
    (b) The judgment is, at the time of the motion, appealable or  pending
  on appeal, and sufficient facts appear on the record with respect to the
  ground or issue raised upon the motion to permit adequate review thereof
  upon  such  an  appeal. This paragraph shall not apply to a motion under
  paragraph (i) of subdivision one of this section; or
    (c) Although sufficient facts appear on the record of the  proceedings
  underlying  the  judgment  to  have  permitted,  upon  appeal  from such
  judgment, adequate review of the ground or issue raised upon the motion,
  no  such  appellate  review  or  determination  occurred  owing  to  the
  defendant's  unjustifiable  failure  to take or perfect an appeal during
  the prescribed period or to his  unjustifiable  failure  to  raise  such
  ground or issue upon an appeal actually perfected by him; or
    (d)  The  ground or issue raised relates solely to the validity of the
  sentence and not to the validity of the conviction.
    3. Notwithstanding the provisions of subdivision one,  the  court  may
  deny a motion to vacate a judgment when:
    (a)  Although  facts in support of the ground or issue raised upon the
  motion could with due diligence by the defendant have readily been  made
  to  appear on the record in a manner providing adequate basis for review
  of such ground or issue upon an appeal from the judgment, the  defendant
  unjustifiably  failed  to  adduce  such matter prior to sentence and the
  ground or issue in question was not subsequently determined upon appeal.
  This paragraph does not apply to a motion based upon deprivation of  the
  right  to  counsel  at  the  trial or upon failure of the trial court to
  advise the defendant of such right, or to a motion under  paragraph  (i)
  of subdivision one of this section; or
    (b)  The  ground  or  issue  raised  upon  the  motion  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 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; or
    (c) Upon  a  previous  motion  made  pursuant  to  this  section,  the
  defendant  was  in  a  position  adequately to raise the ground or issue
  underlying the present motion but did not do so.
    Although the court may deny the motion under any of the  circumstances
  specified  in  this subdivision, in the interest of justice and for good
  cause shown it may in its discretion grant the motion if it is otherwise
  meritorious and vacate the judgment.
    4. If the court grants the motion, it  must,  except  as  provided  in
  subdivision  five  or six of this section, vacate the judgment, and must
  dismiss the accusatory instrument, or order a new trial,  or  take  such
  other action as is appropriate in the circumstances.
    5.  Upon  granting  the  motion  upon  the  ground,  as  prescribed in
  paragraph (g) of subdivision one, that newly discovered evidence creates
  a probability that had such evidence been  received  at  the  trial  the
  verdict  would  have  been  more  favorable to the defendant in that the
  conviction would have been for a lesser offense than the  one  contained
  in the verdict, the court may either:
    (a) Vacate the judgment and order a new trial; or
    (b) With the consent of the people, modify the judgment by reducing it
  to  one  of  conviction for such lesser offense. In such case, the court
  must re-sentence the defendant accordingly.
    6. If the court grants a motion under paragraph (i) of subdivision one
  of this section, it must vacate the judgment and dismiss the  accusatory
  instrument, and may take such additional action as is appropriate in the
  circumstances.
    7.  Upon  a  new  trial  resulting  from  an order vacating a judgment
  pursuant to this section, the indictment is deemed to  contain  all  the
  counts  and to charge all the offenses which it contained and charged at
  the time the previous trial was commenced,  regardless  of  whether  any
  count was dismissed by the court in the course of such trial, except (a)
  those  upon  or  of  which the defendant was acquitted or deemed to have
  been acquitted, and (b)  those  dismissed  by  the  order  vacating  the
  judgment,  and (c) those previously dismissed by an appellate court upon
  an  appeal  from  the  judgment,  or  by  any  court  upon  a   previous
  post-judgment motion.
    8.  Upon an order which vacates a judgment based upon a plea of guilty
  to an accusatory instrument or  a  part  thereof,  but  which  does  not
  dismiss the entire accusatory instrument, the criminal action is, in the
  absence  of  an  express  direction  to  the  contrary,  restored to its
  prepleading status and the accusatory instrument is  deemed  to  contain
  all  the  counts  and  to charge all the offenses which it contained and
  charged at the time of the entry of the plea, except those  subsequently
  dismissed  under  circumstances  specified  in paragraphs (b) and (c) of
  subdivision six.  Where the plea of guilty  was  entered  and  accepted,
  pursuant to subdivision three of section 220.30, upon the condition that
  it  constituted  a  complete  disposition  not  only  of  the accusatory
  instrument underlying the judgment vacated but also of one or more other
  accusatory instruments against the defendant then pending  in  the  same
  court,  the  order of vacation completely restores such other accusatory
  instruments; and such is the case even though such order  dismisses  the
  main accusatory instrument underlying the judgment.

S 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.

S 440.30 Motion to vacate judgment and to set aside sentence;
              procedure.
  1.  (a)  A  motion  to vacate a judgment pursuant to section 440.10 of
  this article and a motion to set aside a sentence  pursuant  to  section
  440.20  of  this  article  must  be  made in writing and upon reasonable
  notice to the people. Upon the motion, a defendant who is in a  position
  adequately  to raise more than one ground should raise every such ground
  upon which he or she intends to challenge the judgment or  sentence.  If
  the  motion  is  based  upon  the  existence or occurrence of facts, the
  motion papers must contain sworn allegations  thereof,  whether  by  the
  defendant or by another person or persons. Such sworn allegations may be
  based  upon  personal  knowledge  of the affiant or upon information and
  belief, provided that in the latter event the  affiant  must  state  the
  sources  of  such  information  and  the  grounds  of  such  belief. The
  defendant  may  further  submit  documentary  evidence  or   information
  supporting  or  tending to support the allegations of the moving papers.
  The people may file with the court, and in such case must serve  a  copy
  thereof  upon  the  defendant  or  his or her counsel, if any, an answer
  denying or admitting any or all of the allegations of the motion papers,
  and may further submit documentary evidence or information  refuting  or
  tending  to  refute  such  allegations. After all papers of both parties
  have been filed, and after all documentary evidence or  information,  if
  any,  has  been  submitted,  the  court  must  consider the same for the
  purpose of ascertaining whether the motion  is  determinable  without  a
  hearing to resolve questions of fact.
    (b)  In  conjunction  with  the filing or consideration of a motion to
  vacate a judgment pursuant to  section  440.10  of  this  article  by  a
  defendant  convicted after a trial, in cases where the court has ordered
  an evidentiary hearing upon such motion, the court may  order  that  the
  people  produce or make available for inspection property, as defined in
  subdivision three of section 240.10 of this  part,  in  its  possession,
  custody,   or   control   that   was  secured  in  connection  with  the
  investigation or prosecution of the defendant upon credible  allegations
  by  the  defendant  and  a  finding  by the court that such property, if
  obtained, would be probative to the determination of defendant's  actual
  innocence,  and  that the request is reasonable. The court shall deny or
  limit such a request upon a finding that such  a  request,  if  granted,
  would  threaten  the  integrity  or  chain of custody of property or the
  integrity of the processes or functions of a laboratory  conducting  DNA
  testing,  pose a risk of harm, intimidation, embarrassment, reprisal, or
  other substantially negative consequences to any person,  undermine  the
  proper  functions  of  law  enforcement including the confidentiality of
  informants, or on the basis of any other factor identified by the  court
  in  the  interests  of justice or public safety. The court shall further
  ensure that any property produced pursuant to this paragraph is  subject
  to  a  protective  order,  where  appropriate.  The court shall deny any
  request made pursuant to this paragraph where:
    (i) (1) the defendant's motion pursuant  to  section  440.10  of  this
  article  does not seek to demonstrate his or her actual innocence of the
  offense or offenses of which he  or  she  was  convicted  that  are  the
  subject  of  the motion, or (2) the defendant has not presented credible
  allegations and the court has not found that such property, if obtained,
  would be probative  to  the  determination  of  the  defendant's  actual
  innocence and that the request is reasonable;
    (ii)  the  defendant  has made his or her motion after five years from
  the date of the judgment of conviction;  provided,  however,  that  this
  limitation  period shall be tolled for five years if the defendant is in
  custody in connection with the conviction that is the subject of his  or
  her  motion,  and provided further that, notwithstanding such limitation
  periods, the court may consider the motion if the defendant  has  shown:
  (A)  that  he  or she has been pursuing his or her rights diligently and
  that some extraordinary circumstance prevented the timely filing of  the
  motion;  (B)  that  the  facts  upon which the motion is predicated were
  unknown to the defendant or his or her attorney and could not have  been
  ascertained  by the exercise of due diligence prior to the expiration of
  the statute of limitations; or (C) considering all circumstances of  the
  case including but not limited to evidence of the defendant's guilt, the
  impact  of granting or denying such motion upon public confidence in the
  criminal justice system, or upon the safety or welfare of the community,
  and the  defendant's  diligence  in  seeking  to  obtain  the  requested
  property  or related relief, the interests of justice would be served by
  considering the motion;
    (iii) the defendant is challenging a judgment convicting him or her of
  an offense that is not a felony defined in section 10.00  of  the  penal
  law; or
    (iv)  upon  a finding by the court that the property requested in this
  motion would be available through other means through reasonable efforts
  by the defendant to obtain such property.
    1-a. (a) (1) Where the defendant's motion requests the performance  of
  a  forensic  DNA  test  on  specified  evidence,  and  upon  the court's
  determination that any evidence containing deoxyribonucleic acid ("DNA")
  was secured in connection with the trial resulting in the judgment,  the
  court  shall  grant  the  application  for  forensic DNA testing of such
  evidence upon its determination that if a DNA test had been conducted on
  such evidence, and if  the  results  had  been  admitted  in  the  trial
  resulting  in  the  judgment, there exists a reasonable probability that
  the verdict would have been more favorable to the defendant.
    (2) Where the defendant's motion for forensic DNA testing of specified
  evidence is made following a  plea  of  guilty  and  entry  of  judgment
  thereon  convicting  him  or  her  of: (A) a homicide offense defined in
  article one hundred twenty-five of the penal law, any felony sex offense
  defined in article one hundred thirty of the penal law, a violent felony
  offense as defined in paragraph (a) of subdivision one of section  70.02
  of  the  penal  law,  or (B) any other felony offense to which he or she
  pled guilty after being charged  in  an  indictment  or  information  in
  superior  court with one or more of the offenses listed in clause (A) of
  this subparagraph, then the court shall grant such  a  motion  upon  its
  determination  that  evidence  containing  DNA was secured in connection
  with the investigation or prosecution of the defendant,  and  if  a  DNA
  test  had been conducted on such evidence and the results had been known
  to the parties prior to the entry of the defendant's plea  and  judgment
  thereon,  there exists a substantial probability that the evidence would
  have established the defendant's actual  innocence  of  the  offense  or
  offenses  that  are  the  subject  of  the defendant's motion; provided,
  however, that:
    (i) the court shall consider whether the defendant had the opportunity
  to request such testing prior to entering a guilty plea, and,  where  it
  finds  that  the defendant had such opportunity and unjustifiably failed
  to do so, the court may deny such motion; and
    (ii) a court shall  deny  the  defendant's  motion  for  forensic  DNA
  testing  where  the  defendant has made his or her motion more than five
  years after entry  of  the  judgment  of  conviction;  except  that  the
  limitation  period may be tolled if the defendant has shown: (A) that he
  or she has been pursuing his or her  rights  diligently  and  that  some
  extraordinary circumstance prevented the timely filing of the motion for
  forensic  DNA  testing;  (B)  that  the  facts  upon which the motion is
  predicated were unknown to the defendant or  his  or  her  attorney  and
  could  not  have been ascertained by the exercise of due diligence prior
  to the expiration of this statute of limitations; or (C) considering all
  circumstances of the case including but not limited to evidence  of  the
  defendant's  guilt,  the  impact of granting or denying such motion upon
  public confidence in the criminal justice system, or upon the safety  or
  welfare  of  the  community, and the defendant's diligence in seeking to
  obtain the requested  property  or  related  relief,  the  interests  of
  justice would be served by tolling such limitation period.
    (b) In conjunction with the filing of a motion under this subdivision,
  the   court  may  direct  the  people  to  provide  the  defendant  with
  information in the possession  of  the  people  concerning  the  current
  physical  location  of  the  specified  evidence  and  if  the specified
  evidence no longer exists or the  physical  location  of  the  specified
  evidence is unknown, a representation to that effect and information and
  documentary evidence in the possession of the people concerning the last
  known  physical  location  of  such  specified  evidence.  If there is a
  finding by the court that the specified evidence no longer exists or the
  physical  location  of  such  specified  evidence   is   unknown,   such
  information  in  and  of  itself  shall  not  be a factor from which any
  inference unfavorable to the  people  may  be  drawn  by  the  court  in
  deciding  a  motion  under  this  section.  The  court, on motion of the
  defendant, may also issue a subpoena duces tecum directing a  public  or
  private  hospital,  laboratory or other entity to produce such specified
  evidence in its possession and/or information and  documentary  evidence
  in  its  possession concerning the location and status of such specified
  evidence.
    (c) In response to a motion under this paragraph, upon notice  to  the
  parties  and  to the entity required to perform the search the court may
  order an entity that  has  access  to  the  combined  DNA  index  system
  ("CODIS") or its successor system to compare a DNA profile obtained from
  probative   biological   material   gathered   in  connection  with  the
  investigation or prosecution of the defendant against DNA  databanks  by
  keyboard  searches, or a similar method that does not involve uploading,
  upon a court's determination that (1) such profile complies with federal
  bureau of investigation or state requirements, whichever are  applicable
  and as such requirements are applied to law enforcement agencies seeking
  such  a comparison, and that the data meet state DNA index system and/or
  national DNA index system criteria as such criteria are applied  to  law
  enforcement   agencies  seeking  such  a  comparison  and  (2)  if  such
  comparison had been conducted, and if the results had been  admitted  in
  the  trial  resulting  in  the judgment, a reasonable probability exists
  that the verdict would have been more favorable to the defendant, or  in
  a  case involving a plea of guilty, if the results had been available to
  the defendant prior to the plea, a reasonable  probability  exists  that
  the   conviction   would   not  have  resulted.  For  purposes  of  this
  subdivision, a "keyboard search" shall mean a search of  a  DNA  profile
  against  the  databank  in  which  the  profile  that is searched is not
  uploaded to or maintained in the databank.
    2. If it appears by conceded  or  uncontradicted  allegations  of  the
  moving  papers or of the answer, or by unquestionable documentary proof,
  that there are circumstances which require denial  thereof  pursuant  to
  subdivision  two of section 440.10 or subdivision two of section 440.20,
  the court must summarily deny the motion. If it appears that  there  are
  circumstances authorizing, though not requiring, denial thereof pursuant
  to  subdivision  three of section 440.10 or subdivision three of section
  440.20, the court may in its discretion either (a)  summarily  deny  the
  motion, or (b) proceed to consider the merits thereof.
    3.  Upon considering the merits of the motion, the court must grant it
  without conducting a hearing and vacate the judgment or  set  aside  the
  sentence, as the case may be, if:
    (a) The moving papers allege a ground constituting legal basis for the
  motion; and
    (b)  Such  ground, if based upon the existence or occurrence of facts,
  is supported by sworn allegations thereof; and
    (c) The sworn allegations of fact essential to support the motion  are
  either   conceded   by  the  people  to  be  true  or  are  conclusively
  substantiated by unquestionable documentary proof.
    4. Upon considering the merits of the motion, the court  may  deny  it
  without conducting a hearing if:
    (a)  The  moving  papers  do  not allege any ground constituting legal
  basis for the motion; or
    (b) The motion is based upon the existence or occurrence of facts  and
  the  moving  papers  do  not contain sworn allegations substantiating or
  tending  to  substantiate  all  the  essential  facts,  as  required  by
  subdivision one; or
    (c)  An  allegation  of  fact  essential  to  support  the  motion  is
  conclusively refuted by unquestionable documentary proof; or
    (d) An allegation of fact essential  to  support  the  motion  (i)  is
  contradicted  by  a  court record or other official document, or is made
  solely by the defendant and is unsupported by  any  other  affidavit  or
  evidence, and (ii) under these and all the other circumstances attending
  the  case,  there  is  no reasonable possibility that such allegation is
  true.
    5. If the court does not determine the motion pursuant to subdivisions
  two, three or four, it must conduct a hearing and make findings of  fact
  essential  to the determination thereof. The defendant has a right to be
  present at such hearing 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 such hearing.
    6. At such a hearing, the defendant has the burden  of  proving  by  a
  preponderance  of  the  evidence  every  fact  essential  to support the
  motion.
    7. Regardless of whether a hearing  was  conducted,  the  court,  upon
  determining  the  motion,  must  set forth on the record its findings of
  fact, its conclusions of law and the reasons for its determination.

S 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.

S 440.46 Motion for resentence; certain controlled substance offenders.
  1.  Any  person  in  the  custody of the department of corrections and
  community supervision convicted of a class B felony offense  defined  in
  article two hundred twenty of the penal law which was committed prior to
  January  thirteenth,  two thousand five, who is serving an indeterminate
  sentence with a maximum term of more than three years,  may,  except  as
  provided  in  subdivision  five  of  this  section,  upon  notice to the
  appropriate district attorney, apply to be resentenced to a  determinate
  sentence in accordance with sections 60.04 and 70.70 of the penal law in
  the court which imposed the sentence.
    2.  As part of any such application, the defendant may also move to be
  resentenced to a determinate sentence in accordance with  section  70.70
  of  the  penal  law for any one or more class C, D, or E felony offenses
  defined in article two hundred twenty or two hundred twenty-one  of  the
  penal  law,  the  sentence  or  sentences  for which were imposed by the
  sentencing court at the same time or were included in the same order  of
  commitment as such class B felony.
    3.  The  provisions  of  section twenty-three of chapter seven hundred
  thirty-eight  of  the  laws  of  two  thousand  four  shall  govern  the
  proceedings  on  and  determination of a motion brought pursuant to this
  section;  provided,  however  that  the  court's  consideration  of  the
  institutional record of confinement of such person shall include but not
  be   limited  to  such  person's  participation  in  or  willingness  to
  participate in treatment or other  programming  while  incarcerated  and
  such person's disciplinary history. The fact that a person may have been
  unable   to   participate   in  treatment  or  other  programming  while
  incarcerated despite such person's willingness to do  so  shall  not  be
  considered  a  negative  factor in determining a motion pursuant to this
  section.
    4. Subdivision one of section seven hundred seventeen and  subdivision
  four  of  section  seven  hundred  twenty-two of the county law, and the
  related provisions of article eighteen-A of such law, shall apply to the
  preparation of and proceedings on  motions  pursuant  to  this  section,
  including any appeals.
    5. The provisions of this section shall not apply to any person who is
  serving  a  sentence  on  a  conviction  for  or  has a predicate felony
  conviction for an exclusion offense. For purposes of  this  subdivision,
  an "exclusion offense" is:
    (a)  a  crime for which the person was previously convicted within the
  preceding ten years, excluding any time during which  the  offender  was
  incarcerated  for  any  reason  between  the  time  of commission of the
  previous felony and the time of commission of the present felony,  which
  was:  (i)  a  violent  felony offense as defined in section 70.02 of the
  penal law; or (ii) any other offense for which a merit time allowance is
  not  available  pursuant  to  subparagraph  (ii)  of  paragraph  (d)  of
  subdivision one of section eight hundred three of the correction law; or
    (b)  a  second violent felony offense pursuant to section 70.04 of the
  penal law or a persistent violent felony  offense  pursuant  to  section
  70.08  of  the  penal  law  for  which  the  person  has previously been
  adjudicated.

S 440.50 Notice to crime victims of case disposition.
  1.  Upon  the  request  of a victim of a crime, or in any event in all
  cases in which the final disposition includes a conviction of a  violent
  felony  offense as defined in section 70.02 of the penal law or a felony
  defined in article one hundred twenty-five of  such  law,  the  district
  attorney  shall, within sixty days of the final disposition of the case,
  inform the victim by letter of such final  disposition.  If  such  final
  disposition results in the commitment of the defendant to the custody of
  the   department   of  corrections  and  community  supervision  for  an
  indeterminate sentence, the notice provided to the  crime  victim  shall
  also  inform  the  victim  of  his  or  her  right  to submit a written,
  audiotaped, or videotaped victim impact statement to the  department  of
  corrections  and  community  supervision  or  to  meet personally with a
  member of the state board of parole at a time and  place  separate  from
  the  personal interview between a member or members of the board and the
  inmate and make such a statement, subject to procedures and  limitations
  contained  in  rules  of  the board, both pursuant to subdivision two of
  section two hundred fifty-nine-i of the executive law. The right of  the
  victim  under  this  subdivision  to  submit  a  written  victim  impact
  statement or to meet personally with a member  of  the  state  board  of
  parole applies to each personal interview between a member or members of
  the board and the inmate.
    2.  As  used  in  this  section,  "victim" means any person alleged or
  found, upon the record, to have sustained physical or  financial  injury
  to  person  or  property  as  a  direct result of the crime charged or a
  person alleged or found to have sustained, upon the record,  an  offense
  under  article  one hundred thirty of the penal law, or in the case of a
  homicide or minor child, the victim's family.
    3. As used in this section,  "final  disposition"  means  an  ultimate
  termination  of  the  case at the trial level including, but not limited
  to, dismissal, acquittal, or imposition of sentence by the court,  or  a
  decision  by the district attorney, for whatever reason, to not file the
  case.

S 440.55 Notice to education department where a licensed professional
              has been convicted of a felony.
 The  district  attorney  shall  give  written  notification   to   the
  department  of  education  upon the conviction of a felony of any person
  holding a license pursuant to title  eight  of  the  education  law.  In
  addition,  the  district attorney shall give written notification to the
  department upon the vacatur or reversal of any felony conviction of  any
  such person.

S 440.60 Notification of invalid sentences of probation.
  Whenever  it  shall  appear  to  the  satisfaction  of the appropriate
  director of the probation department that a person sentenced pursuant to
  article sixty of the penal law has received a sentence which is  invalid
  as  a  matter  of  law,  it shall become his duty to notify the district
  attorney of the county in which such person  was  convicted.  Upon  such
  notification,  the  district  attorney shall immediately investigate the
  matter and if such sentence of probation is in fact invalid as a  matter
  of  law,  the district attorney shall immediately move to set aside such
  sentence pursuant to section 440.40 of this chapter.

S 440.65 Notice  to  child  protective  agency of conviction for certain
               crimes against a child.
  Upon conviction of any person for a crime under  article  one  hundred
  twenty,  article  one  hundred  twenty-five, article one hundred thirty,
  article two hundred sixty or article  two  hundred  sixty-three  of  the
  penal  law  committed  against  a  child  under the age of eighteen by a
  person legally responsible for such child,  as  defined  in  subdivision
  three  of  section  four  hundred twelve of the social services law, the
  district attorney serving the jurisdiction in which such  conviction  is
  entered  shall notify the local child protective services agency of such
  conviction including the name of the defendant, the name of  the  child,
  the  court  case  number and the name of the prosecutor who appeared for
  the people.

 S 440.70 Notice to the secretary of state when false financing statement
                 filed.
    Upon  conviction  of  any  person  for  a  crime  where  the defendant
  intentionally filed or caused to be filed a financing statement pursuant
  to article nine of the uniform commercial code on form UCC1 that falsely
  claims that a person is indebted or obligated  to  such  defendant,  the
  court  wherein  such  conviction is entered, or the clerk thereof, shall
  issue and cause to be filed a certificate with the New York secretary of
  state: (a) certifying that a judgment of conviction has been entered  in
  such  court against the defendant who was listed as the secured party in
  such form; and (b) specifying the date and location of the  filing,  any
  filing  or  indexing number assigned to such filing, the debtor named in
  such statement, and a description of the collateral  encumbered  by  the
  instrument.

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