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DEFENDANT HAS THE RIGHT TO BE PERSONALLY PRESENT AT RESENTENCING ABSENT WAIVER, RESENTENCE REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s resentence, determined the right to be personally present at sentencing extends to resentencing:

The defendant’s fundamental right to be “personally present at the time sentence is pronounced” (CPL 380.40[1]) extends to resentencing or to the  …amendment of a sentence … . While a defendant convicted of a felony may waive the right to be present at resentencing, this waiver must be expressly made … . A “[w]aiver results from a knowing, voluntary and intelligent decision” … . Here, the defendant was not produced at resentencing and the record is devoid of any indication that he expressly waived his right to be present. Thus, the Supreme Court’s failure to have the defendant produced at the resentencing proceeding violated the defendant’s fundamental right to be present at the time of sentence. People v Rodriguez, 2020 NY Slip Op 04493, Second Dept 8-12-20

 

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