Section 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.