§ 440.20 Motion to set aside sentence; by defendant.\n 1. At any time after the entry of a judgment, the court in which the\njudgment was entered may, upon motion of the defendant, set aside the\nsentence upon the ground that it was unauthorized, illegally imposed or\notherwise invalid as a matter of law. Where the judgment includes a\nsentence of death, the court may also set aside the sentence upon any of\nthe grounds set forth in paragraph (b), (c), (f), (g) or (h) of\nsubdivision one of section 440.10 as applied to a separate sentencing\nproceeding under section 400.27, provided, however, that to the extent\nthe ground or grounds asserted include one or more of the aforesaid\nparagraphs of subdivision one of section 440.10, the court must also\napply subdivisions two and three of section 440.10, other than paragraph\n(d) of subdivision two of such section, in determining the motion. In\nthe event the court enters an order granting a motion to set aside a\nsentence of death under this section, the court must either direct a new\nsentencing proceeding in accordance with section 400.27 or, to the\nextent that the defendant cannot be resentenced to death consistent with\nthe laws of this state or the constitution of this state or of the\nUnited States, resentence the defendant to life imprisonment without\nparole or to a sentence of imprisonment for the class A-I felony of\nmurder in the first degree other than a sentence of life imprisonment\nwithout parole. Upon granting the motion upon any of the grounds set\nforth in the aforesaid paragraphs of subdivision one of section 440.10\nand setting aside the sentence, the court must afford the people a\nreasonable period of time, which shall not be less than ten days, to\ndetermine whether to take an appeal from the order setting aside the\nsentence of death. The taking of an appeal by the people stays the\neffectiveness of that portion of the court's order that directs a new\nsentencing proceeding.\n 2. Notwithstanding the provisions of subdivision one, the court must\ndeny such a motion when the ground or issue raised thereupon was\npreviously determined on the merits upon an appeal from the judgment or\nsentence, unless since the time of such appellate determination there\nhas been a retroactively effective change in the law controlling such\nissue.\n 3. Notwithstanding the provisions of subdivision one, the court may\ndeny such a motion when the ground or issue raised thereupon was\npreviously determined on the merits upon a prior motion or proceeding in\na court of this state, other than an appeal from the judgment, or upon a\nprior motion or proceeding in a federal court, unless since the time of\nsuch determination there has been a retroactively effective change in\nthe law controlling such issue. Despite such determination, however,\nthe court in the interest of justice and for good cause shown, may in\nits discretion grant the motion if it is otherwise meritorious.\n 4. An order setting aside a sentence pursuant to this section does\nnot affect the validity or status of the underlying conviction, and\nafter entering such an order the court must resentence the defendant in\naccordance with the law.\n
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