DEFENDANT FILED A SUBSTANTIAL MOTION TO ALLOW DEFENSE COUNSEL TO BE PRESENT AT THE PRESENTENCE INTERVIEW; THE ISSUE IS A MATTER OF JUDICIAL DISCRETION; HERE THE DENIAL OF THE MOTION WAS AN ABUSE OF DISCRETION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to have defense counsel present at the presentence interview should have been granted. The issue was not preserved but was considered under the court’s interest of justice jurisdiction. Because there is no statute on point, whether to allow defense counsel at the presentence interview is a matter of discretion:

… [T]he absence of a provision indicating whether counsel is permitted to attend the presentence interview leaves the issue to the court’s discretion, reviewable for abuse or improvident exercise thereof … .

Here, in advance of the presentence interview, defendant filed a substantial application requesting that counsel be permitted to attend. Because the extent of defendant’s sentence was subject to the court’s decision following his trial conviction and his application noted, among other things, the applicability of SORA at the conclusion of his incarceratory term, Supreme Court’s denial of defense counsel’s attendance at the presentence interview was an improvident exercise of discretion. Accordingly, defendant’s sentence should be vacated, and the matter remanded for resentencing after a presentence interview at which defense counsel may appear. People v Lee, 2026 NY Slip Op 06259, First Dept 10-27-26

Practice Point: Here defendant’s “substantial” motion seeking permission to have defense counsel at the presentence interview should have been granted. Matter remitted.