You are here: / / THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON...
, , ,

THE JUDGE, SUA SPONTE, DECIDED TO ENHANCE DEFENDANT’S AGREED-UPON SENTENCE BASED UPON HER RESPONSES TO QUESTIONS POSED BY PROBATION FOR THE PRESENTENCE REPORT; THE PROSECUTOR DID NOT ASK FOR THE ENHANCED SENTENCE; THE DEFENSE WAS NOT GIVEN AN OPPORTUNITY TO ADDRESS THE ISSUE, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS (THIRD DEPT).

The Third Department, vacating defendant’s sentence, over a dissent, determined that the defense was not given an opportunity to address the sentencing judge’s sua sponte decision to enhance the agreed-upon sentence based on defendant’s responses to questions posed by probation for the presentence report. The prosecutor did not see any conflict between defendant’s plea allocution and her responses in the report and did not call for an enhanced sentence: So the defense was taken by surprise.. Defense counsel requested a hearing but the request was denied:

After the parties had an opportunity to state their arguments, the court engaged in a lengthy colloquy before … stating that it disagreed with the People’s conclusion that there was no violation of the plea agreement and determining that it would enhance defendant’s sentence to the maximum allowable term of imprisonment. It was at this point that defendant first had any indication that she was facing a potential sentencing enhancement and, in response, defense counsel immediately requested a hearing, which County Court summarily denied.… .In effect, that determination precluded defendant and her counsel an opportunity to refute the accuracy of the officer’s statements in the PSR that were relied upon by the court in finding that she had violated a condition of her plea by failing to answer the probation officer’s questions truthfully … . Moreover, County Court made no further inquiry as to whether defendant understood the questions asked during her Probation Department interview and whether she had answered them untruthfully or contrary to her statements at her plea proceedings … .

While a hearing is not necessarily required in all instances, the circumstances before us warranted some form of inquiry before County Court could impose an enhanced sentence … . People v Dibble, 2023 NY Slip Op 06411, Third Dept 12-14-23

Practice Point: When the judge, sua sponte, decided to enhance defendant’s agreed-upon sentence because of defendant’s responses to questions posed by probation for the presentence report, defense counsel immediately requested a hearing to address the issue (which had not been raised by the prosecution). The request was denied. The Third Department agreed that a hearing was required in this case and vacated the sentence.

 

You might also like
MOTION FOR LEAVE TO AMEND THE COMPLAINT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (THIRD DEPT).
Petitions to Relocate Are Not Subject to a “Change in Circumstances” Analysis But Rather a “Best Interests of the Child Analysis;” the “Lincoln” Hearing Was Improperly Held In the Presence of Parents’ Counsel and the Transcribed Proceedings Were Improperly Left Unsealed and Included in the Record on Appeal; An Article 10 Hearing, Where Counsel for the Parents Are Allowed to Be Present, Should Not Be Confused with an Article 6 Hearing, Where They Are Not
HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).
TESTIMONY OF DNA EXPERT, WHICH WAS BASED ON DATA COLLECTED BY NON-TESTIFYING WITNESSES, DID NOT VIOLATE DEFENDANT’S RIGHT OF CONFRONTATION; ILLEGAL STOP DID NOT REQUIRE SUPPRESSION OF STATEMENT, SUFFICIENT ATTENUATION.
Question of Fact About Resort Owner’s Duty to Maintain Walkways in Winter Despite Claim the Resort Was Closed in the Winter Months
COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT).
DEFENDANT DID NOT PROVE THE EXISTENCE OF A PRESCRIPTIVE EASEMENT OVER PLAINTIFF’S LAND; PLAINTIFF DID NOT PROVE THE DAMAGES ELEMENT OF TRESPASS (THIRD DEPT).
UNDER THE TERMS OF THE EMPLOYMENT AGREEMENT AND THE APPLICABLE INSURANCE LAW PROVISIONS, AND UNDER THE PRINCIPLES OF UNJUST ENRICHMENT, PLAINTIFF EMPLOYEE, NOT DEFENDANT EMPLOYER, WAS ENTITLED TO THE DEMUTUALIZATION PROCEEDS WHEN THE MEDICAL MALPRACTICE INSURANCE CARRIER CONVERTED FROM A MUTUAL TO A STOCK INSURANCE COMPANY, DESPITE THE FACT THAT THE DEFENDANT EMPLOYER PAID THE POLICY PREMIUMS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TEACHERS EMPLOYED AT STATE CORRECTIONAL FACILITIES WORKED FROM SEPTEMBER TO... HERE THERE WAS NO INDICATION THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT,...