Decided On : 12/15/2016
People v Stewart
Issue before the Court: Whether defense counsel’s waiver of Mr. Stewart’s presence at re-sentencing was valid.
Held: No, there was no valid waiver of Mr. Stewart’s right to be present. Last year, the Court of Appeals held that a defendant can waive his right to be present at sentencing in a felony case. In People v. Rossborough, 27 N.Y.3d 485 (2016), the defendant personally, in the presence of counsel, asked the judge to excuse him from attending the upcoming sentencing proceeding. That explicit waiver was later upheld. The Court of Appeals, however, did not extend Rossborough in People v. Stewart, 2016 WL 7235304 (Dec, 2016), where the defense lawyer informed the judge, at a resentencing proceeding, that the defendant did not wish to be produced from prison for the resentencing proceeding. See Letter Brief, People v. Stewart, 2016 WL 7442497, *5 (July 7, 2016). This waiver by counsel was ineffective because “there [was] no record of any form of express waiver by defendant himself, whether oral or in writing.”
CAL Observes: The Court of Appeals noted that the Stewart case did not “present” what the Court termed to be a different issue being raised by the People: “that an inmate who wishes to waive his right to be present at resentencing should not be required to convey that waiver by personal appearance in court, and that defendant properly waived his right to be present by having his counsel speak on his behalf.”
Despite the Court’s hesitation, it seems that Stewart does stand for the proposition that the lawyer cannot waive the defendant’s presence at resentencing [or sentencing] unless the record includes the defendant’s personal oral or written waiver of his or her right to be present. Otherwise, counsel cannot waive defendant’s presence at sentencing or resentencing.
People v Stewart