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THE DEFENDANT WAS NOT PRODUCED FOR SENTENCING; HIS RIGHT TO BE PRESENT AT SENTENCING WAS THEREFORE VIOLATED, REQUIRING REMITTAL FOR RESENTENCING (SECOND DEPT).

The Second Department, remitting the matter for resentencing, noted that defendant was deprived of his right to be personally present at his sentencing:

A defendant has a fundamental right to be “personally present at the time sentence is pronounced” … . Here, the defendant was not produced at sentencing on the convictions of assault in the first degree and criminal possession of a weapon in the fourth degree, and the record is devoid of any indication that he expressly waived his right to be present (see CPL 380.40[2] …). … Supreme Court’s failure to have the defendant produced at the sentencing proceeding … violated the defendant’s fundamental right to be present at the time of sentence…. People v Umar, 2022 NY Slip Op 01818, Second Dept 3-16-22

Practice Point: A defendant has a fundamental right to be personally present at sentencing. Violation of that right requires remittal and resentencing.

 

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