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THE JUDGE, IN DENYING DEFENDANT’S SECOND MOTION TO SET ASIDE HIS SENTENCE, SHOULD NOT HAVE PRECLUDED DEFENDANT FROM MAKING “ADDITIONAL APPLICATIONS” WITHOUT THE PERMISSION OF THE COURT (THIRD DEPT).

The Third Department noted that the judge who denied defendant’s second motion to set aside his sentence should not have precluded defendant from making “additional applications” without the permission of the court:

We … agree with defendant that County Court abused its discretion in ordering that prior court approval was required before any further motions were filed. Notably, the authority cited by County Court — 22 NYCRR part 130-1.1 — by its own terms applies to only civil actions or proceedings (see 22 NYCRR 130-1.1 [a]). Moreover, even if such authority does exist in a criminal action … , defendant has not engaged in sufficiently excessive, protracted and/or unwarranted litigation as to justify such action here. … . People v Maloy, 2022 NY Slip Op 02312, Third Dept 4-7-22

Practice Point: Here the court abused its discretion in prohibiting defendant, who had made two motions to set aside his sentence, from making additional motions without permission from the court. It is questionable whether a judge has that authority on the criminal, as opposed to civil, side.

 

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