Sentencing Issues In New York: Court Has No Authority To Alter a Judgment And Sentence In The Absence Of The Defendant And His Attorney

In New York, a court cannot change, amend or otherwise alter a sentence in a criminal case without the defendant and his or her criminal defense attorney being present. Occasionally a court might attempt to change an otherwise legal sentence post sentence by signing additional probation conditions. This practice is contrary to both statutory and decisional law. The New York Criminal Procedure Law provides that “[t]he defendant must be personally present at the time sentence is pronounced.” CPL 380.40(1). It is axiomatic that a defendant has a statutory and constitutional right to be present at the time of sentencing. People v. Brown, 155 A.D.2d 608 (2nd Dept. 1989)(CPL 380.40(1) requires a defendant to be present at the time of sentence); People v. Lucks, 91 A.D.2d 896 at 897, 457 N.Y.S.2d 514 (1st Dept. 1983)(“CPL 380.40 (subd 1) is clear in its direction that a defendant be personally present at the time sentence is pronounced.”)

More importantly however, is the long-standing, clearly established, rule of law, that a court has no authority to alter a sentence in the absence of the defendant and his attorney. People v. Saperstein, 1 A.D.2d 949, 150 N.Y.S.2d 844 (1st Dept. 1956). A court’s failure to have a defendant produced at a proceeding at which the defendant’s sentence is amended, violates that defendant’s statutory right to be present at the time of sentencing. People v. Garrison, 9 A.D.3d 436, 780 N.Y.S.2d 170 (2nd Dept. 2004); see also People ex rel. Walker v. Wilkins, 23 A.D.2d 619, 256 N.Y.S.2d 810 (4th Dept. 1965)(Change of sentence out of presence of defendant and his attorney ruled invalid).
Not only must the defendant be present for all sentencing proceedings, his or her attorney must also be present. The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to . . . . have the Assistance of Counsel for his defense.” U.S.C.A. Const. Amend. VI. Similarly, the New York State Constitution provides in pertinent part: “In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel . . .” NY Const. Art I, § 6.

Furthermore, a defendant is afforded the aforementioned constitutional right to counsel “at the crucial stage of sentencing”. People v. Gonzalez, 43 A.D.2d 914 (1st Dept. 1974); see also, People v. Perez, 63 A.D.2d 911 (1st Dept. 1978); People v. Di Salvo, 19 A.D.2d 747 (2nd Dept 1963). Accordingly, an accused’s rights are violated if, in the absence of a waiver, he is not afforded assistance of counsel at time of sentence. People v. Sykes, 23 A.D.2d 701 (2nd Dept. 1965). Sentencing is considered a critical stage of the proceeding at which a criminal defendant has a constitutional right to be represented by counsel. U. S. v. Morales, 498 F.Supp. 139 (E.D.N.Y. 1980). The imposition of a sentence in the absence of counsel requires the vacation of the sentence. People v. Read, 134 A.D.2d 462, 521 N.Y.S.2d 85 (2nd Dept. 1987).

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