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DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, remitting the DWI case for resentencing, determined defendant’s sentence should not have been changed after defendant left the courtroom. The court further found that the five-year conditional discharge to monitor the ignition interlock device exceeded the maximum allowed term (three years):

“[D]efendants have a fundamental right to be present at sentencing’ in the absence of a waiver” of that right … , and here defendant did not waive his right to be present at sentencing. Thus, as the People correctly concede, the court erred in changing the sentence of incarceration after defendant left the courtroom inasmuch as a resentencing to correct an error in a sentence “must be done in the defendant’s presence” … . People v Perkins, 2018 NY Slip Op 04472, Fourth Dept 6-15-18

CRIMINAL LAW (SENTENCING, DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))/SENTENCING (DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT))

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ALTHOUGH THE PERSISTENT FELONY OFFENDER STATUS WAS AUTHORIZED AND LEGAL, THE APPELLATE DIVISION EXERCISED ITS DISCRETION TO FIND DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT FELONY OFFENDER AND REDUCED HIS SENTENCE (FOURTH DEPT).
THE INFORMATION SOUGHT BY DEFENDANT IN THIS SUIT BY THE INSURER TO DISCLAIM COVERAGE WAS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION (FOURTH DEPT).
FALSE ARREST AND FALSE IMPRISONMENT COMPLAINT PROPERLY DISMISSED AFTER A DEFENSE VERDICT; TWO JUSTICE DISSENT (FOURTH DEPT).
COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT).
Department of Social Services (DSS) Is Not a “Victim” under the Penal Law—Defendant Can Not Be Ordered to Pay Restitution to DSS for Care of Child-Victim of Defendant’s Offense
WHETHER A SUCCESSFUL MOTION TO DISMISS COULD HAVE BEEN MADE ON DOUBLE JEOPARDY GROUNDS PURSUANT TO CPL 40.20 COULD NOT HAVE BEEN DETERMINED ON DIRECT APPEAL, THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

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