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A Defendant May Waive The Right To Be Present At Felony Sentencing In Limited Circumstances.


A Defendant May Waive The Right To Be Present At Felony Sentencing In Limited Circumstances.

People v Rossborough

2016 NY Slip Op 04250

New York Court of Appeals

Decided: June 2, 2016

Issue: Whether a defendant who pleads guilty to a felony may waive his or her right to be ‘present’ at sentencing.

Holding: The New York Court of Appeals held that such a waiver is permissible. However, should defendant disagree with the proposed sentence or if circumstances indicated that the negotiated plea agreement would not be honored, defendant would have to appear for sentencing.cuffs sentence

CPL 380.40

CPL 380.40 provides with limited exceptions, that the defendant must be personally present at the time sentence is pronounced on a misdemeanor. ?There is no statute that provides for waiver of one’s presence at sentencing on a felony. ?However, the Court of Appeals found that a defendant may expressly waive his right to be present at sentencing on a felony. ?Although one’s right to be present is a fundamental right, it may be waived. ?the right to be present at sentencing does not fall within the class of those fundamental rights that may not be waived, particularly where a defendant is receiving the sentence to which he knowingly and voluntarily agreed in a ?plea bargain.

Facts: Defendant pleaded guilty to grand larceny in the third degree and was sentenced as a second felony offender to an indeterminate term of 3 to 6 years imprisonment. At the plea proceeding, defense counsel informed the court that defendant wanted to waive his personal appearance at sentencing.

After County Court apprised his absolute right to be here for the sentencing, the court stated that if defendant wished to appear at sentencing solely by his attorney he could do so. However, the court cautioned that should he disagree with the proposed sentence or if the circumstances indicated that he negotiated plea agreement would not be honored, defendant would have to appear for sentencing; defendant acknowledged he understood. On the day of sentencing, defense counsel appeared on defendant’s behalf and sentenced defendant in accordance with the plea agreement.

On appeal, defendant argued that County Court erred in sentencing him in absentia citing Criminal Procedure Law 380.40 (1). The Appellate Division rejected Defendants argument, holding that defendant established on the record that he waived his right to be present. A Judge of this Court granted leave to appeal and the Court of Appeals affirmed the Appellate Divisions order.

juryyyyyLegal Analysis: The New York Court of Appeals held that defendant here contends that County Court violated CPL 380.40 (1) by permitting him to waive his presence for sentencing and in pronouncing judgment in his absence. CPL 380.40 provides, with limited exceptions, that the defendant must be personally present at the time sentence is pronounced, CPL 380.40 (1).

In situations where the sentence is to be pronounced for a misdemeanor or petty offense, a defendant may move to dispense with the personal presence requirement, and, with the court’s permission, may be sentenced in absentia so long as the defendant executes a waiver reciting the maximum sentence that may be imposed for the offense and stating that the defendant waives the right to be personally present at the time?sentence is pronounced, CPL 380.40 (2) A defendant who absconds during trial or before sentencing, for example, is said to forfeit any right to be present,?People v Corley, 67 NY2d 105, 109-110 (1986);People v Sanchez [Rivera], 65 NY2d 436, 444 (1985).

The Court of Appeals held that a defendant may expressly waive his right to be present. Waiver results from a knowing, voluntary and intelligent decision, Corley, 67 NY2D at 110. Although CPL 380.40 protects a defendant’s fundamental right to be present at sentencing, Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of New York, Book 11A, CPL 380.40, at 271, that fundamental right may be waived just as many other fundamental rights may be similarly waived, People v Mox, 20 NY3d 936, 938 (2012).

A defendant’s right to be present at sentencing does not fall within the class of those fundamental rights that may not be waived, particularly where a defendant is receiving the sentence to which he knowingly and voluntarily agreed in a plea bargain. The Court of Appeals held that if a defendant knowingly, voluntarily and intelligently informs the court that he desires to waive his fundamental right, he is entitled to do so.plea-deal

Here, defendant specifically sought to waive his right and did so on the record in the presence of his attorney, and was apprised by the court that he had an absolute right to personally appear, and expressly agreed to have his attorney appear at sentencing on his behalf. Moreover, the court assured defendant that it would not sentence him in absentia if circumstances indicated that the plea agreement could not be honored. Under these circumstances, defendant, having expressly waived his right to personally appear in the presence of his counsel, cannot be heard to complain that County Court erred in granting his specific request. Accordingly, the order of the Appellate Division should be affirmed.


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