Criminal Defense Lawyers

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.

Christine Twomey

2024-03-21

Just had my Divorce case settled 2 months ago after having a horrible experience with another firm. I couldn’t be happier with Claire Banks and Elizabeth Garvey with their outstanding professionalism in doing so with Spodek Law Group. Any time I needed questions answered they were always prompt in doing so with all my uncertainties after 30 yrs of marriage.I feel from the bottom of my heart you will NOT be disappointed with either one. Thanks a million.

Brendan huisman

2024-03-18

Alex Zhik contacted me almost immediately when I reached out to Spodek for a consultation and was able to effectively communicate the path forward/consequences of my legal issue. I immediately agreed to hire Alex for his services and did not regret my choice. He was able to cover my case in court (with 1 day notice) and not only was he able to push my case down, he carefully negotiated a dismissal of the charge altogether. I highly recommend Spodek, and more specifically, Alex Zhik for all of your legal issues. Thanks guys!

Guerline Menard

2024-03-18

Thanks again Spodek law firm, particularly Esq Claire Banks who stood right there with us up to the finish line. Attached photos taken right outside of the court building and the smile on our faces represented victory, a breath of fresh air and satisfaction. We are very happy that this is over and we can move on with our lives. Thanks Spodek law 🙏🏼🙏🏼🙏🏼🙏🏼🙌🏼❤️

Keisha Parris

2024-03-15

Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.

Taïko Beauty

2024-03-15

I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!

Anthony Williams

2024-03-12

Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.

Loveth Okpedo

2024-03-12

Very professional, very transparent, over all a great experience

Bee L

2024-02-28

Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.

divesh patel

2024-02-24

I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Load more

Google rating score: 4.9 of 5, based on 736 reviews

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.