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People v. Askew , 411 N.Y.S.2d 569 ( 1978 )


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  • Order, Supreme Court, Bronx County, entered May 11, 1978, denying a motion by the People made pursuant to CPL 440.40, affirmed. Prior to the sentencing of this defendant, counsel requested that the sentence mandated by statute not be applied. The issue was fully briefed to the court by both defense counsel and the District Attorney. The court ruled in favor of the defendant. The People did not file a notice of appeal. Well after the time to file a notice of appeal had passed, the District Attorney made a motion, pursuant to CPL 440.40, to set aside the sentence on the ground that it was invalid as a matter of law. The court denied the motion and we would affirm that determination. CPL 440.40 (subd 3) provides that the court may summarily deny a motion to set aside a sentence when the matter was previously determined on the merits. Such was the case at bar since counsel had full opportunity to present arguments germane to the issue. CPL 440.40 further provides that the court may nonetheless grant the motion to set aside, if otherwise meritorious, in the interests of justice and for good cause shown. In the case at bar, the People met neither criterion. The People do not deny that they had a full opportunity initially to argue the merits, nor do they present an excuse for failing to file a notice of appeal timely from the original determination which they found adverse to their position. Furthermore, the record before us in this particular case does not indicate that the interests of justice warranted the court’s exercising its discretion on the instant motion and setting aside the sentence. Our affirmance of the trial court does not signal foreclosure of the People’s right to use CPL 440.40 as a vehicle to set aside a sentence imposed as invalid (cf. Matter of Morgenthau v Roberts, 47 AD2d 826, 827). We hold only that, under the circumstances here presented, the trial court’s refusal to grant the motion to vacate the sentence was not an improvident exercise of discretion. Concur-Evans, J. P., Lane, Lynch and Sandier, JJ.

Document Info

Citation Numbers: 66 A.D.2d 710, 411 N.Y.S.2d 569, 1978 N.Y. App. Div. LEXIS 13992

Judges: Fein

Filed Date: 12/19/1978

Precedential Status: Precedential

Modified Date: 11/1/2024