The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined a defendant has a right to be present when, after moving to vacate the sentence because the period of post-release supervision (PRS) was not mentioned, the sentencing court imposes the original sentence without a period of PRS:
There is only one enumerated exception to the statute where the defendant is convicted of a misdemeanor or petty offense, on motion of the defendant the court may sentence the defendant in absentia (CPL 380.40 [2]). We have also previously held that a defendant convicted of a felony may waive the right to be present at sentencing, provided that the waiver is knowing, voluntary and intelligent … . However, absent such a waiver — or a forfeiture of the right to be present … — … “[t]here is no statutory basis for [a] [futility] exception” … .
Here, the Appellate Division concluded that there was no reason to remand the case because [defendant] was not adversely affected by his re-imposed sentence, citing People v Covington(88 AD3d 486, 486 [1st Dept 2011]), and People v Mills (117 AD3d at 1556). The majority in Mills cited CPL 470.15 [1] for the proposition that the Appellate Division cannot consider a sentence that did not “adversely affect[] the appellant.” CPL 470.15 (1) says, “Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” Here, as there was no voluntary waiver, [defendant’s] absence from the sentencing proceeding was in itself, under our precedents, an error as it constitutes a violation of his right under CPL 380.40. Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court for further proceedings in accordance with this opinion. People v Estremera, 2017 NY Slip Op 08036, CtApp 11-16-17
CRIMINAL LAW (SENTENCING, DEFENDANT HAS THE RIGHT TO BE PRESENT WHERE, IN RESPONSE TO A MOTION TO VACATE BECAUSE THE PERIOD OF POST-RELEASE SUPERVISION (PRS) WAS NOT MENTIONED AT THE ORIGINAL SENTENCING, THE COURT IMPOSES A SENTENCE WITHOUT A PERIOD OF PRS (CT APP))/SENTENCING (DEFENDANT HAS THE RIGHT TO BE PRESENT WHERE, IN RESPONSE TO A MOTION TO VACATE BECAUSE THE PERIOD OF POST-RELEASE SUPERVISION (PRS) WAS NOT MENTIONED AT THE ORIGINAL SENTENCING, THE COURT IMPOSES A SENTENCE WITHOUT A PERIOD OF PRS (CT APP))/POST RELEASE SUPERVISION (SENTENCING, DEFENDANT HAS THE RIGHT TO BE PRESENT WHERE, IN RESPONSE TO A MOTION TO VACATE BECAUSE THE PERIOD OF POST-RELEASE SUPERVISION (PRS) WAS NOT MENTIONED AT THE ORIGINAL SENTENCING, THE COURT IMPOSES A SENTENCE WITHOUT A PERIOD OF PRS (CT APP))