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Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP

The Second Department determined defendant’s denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP.  The sentencing court therefore was not justified in imposing an enhanced sentence:

As a condition of the court’s promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the “cooperation” condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.

Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence …, here, the defendant’s denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP … . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition … . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty… . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15

Defendant’s Refusing to Be Interviewed by the Probation Department Was a Valid Ground for Sentence Enhancement

The Second Department determined the defendant’s refusing to be interviewed by the probation department was a valid ground for a sentence enhancement:

A defendant’s “failure to abide by a condition of a plea agreement to truthfully answer questions asked by [a]; probation department is an appropriate basis for the enhancement of the defendant’s sentence” … . Here, the plea condition requiring the defendant to cooperate with the Dutchess County Office of Probation and Community Corrections (hereinafter the OPCC) was explicit and objective, and the plea allocution reveals that the defendant acknowledged, understood, and accepted such condition … . Accordingly, the Supreme Court properly imposed an enhanced sentence based upon the defendant’s violation of the condition by refusing to be interviewed by the OPCC. People v Mazyck, 2014 NY Slip Op 03864, 2nd Dept 5-28-14

 

Failure to Cooperate with Probation Department Is Valid Reason for Enhanced Sentence

The Second Department determined defendant’s failure to cooperate with the probation department in violation of his plea agreement was a valid ground for an enhanced sentence:

The condition of the defendant’s plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement …. The defendant’s violation of that condition, by refusing to be interviewed by the probation officer, allowed the Supreme Court to impose the enhanced sentence.  People v Patterson, 2013 NY Slip Op 03113, 5-1-18

 

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No Right to Counsel in Presentence Interview.

There is no right to counsel in a presentence interview with the probation department.  People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13

 

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