§ 440.40 Motion to set aside sentence; by people.\n 1. At any time not more than one year after the entry of a judgment,\nthe court in which it was entered may, upon motion of the people, set\naside the sentence upon the ground that it was invalid as a matter of\nlaw.\n 2. Notwithstanding the provisions of subdivision one, the court must\nsummarily deny the 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\nsummarily deny such a motion when the ground or issue raised thereupon\nwas previously determined on the merits upon a prior motion or\nproceeding in a court of this state, other than an appeal from the\njudgment or sentence, unless since the time of such determination there\nhas been a retroactively effective change in the law controlling such\nissue. Despite such circumstance, however, the court, in the interests\nof justice and for good cause shown, may in its discretion grant the\nmotion if it is otherwise meritorious.\n 4. The motion must be made upon reasonable notice to the defendant\nand to the attorney if any who appeared for him in the last proceeding\nwhich occurred in connection with the judgment or sentence, and the\ndefendant must be given adequate opportunity to appear in opposition to\nthe motion. The defendant has a right to be present at such proceeding\nbut may waive such right in writing. If he does not so waive it and if\nhe is confined in a prison or other institution of this state, the court\nmust cause him to be produced at the proceeding upon the motion.\n 5. 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 6. Upon a resentence imposed pursuant to subdivision five, the terms\nof which are more severe than those of the original sentence, the\ndefendant's time for taking an appeal from the judgment is automatically\nextended in the manner prescribed in subdivision four of section 450.30.\n
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