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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.

 

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