Issue Presented: Whether a defendant need be present at a “resentencing” which does not “adversely affect[]” him.

 

Held: Yes, of course he does.  A defendant “must be personally present at the time sentence is pronounced.”  C.P.L. § 380.40.

 

CAL Observes: The Court seemingly didn’t struggle with this one, though the context of the “resentencing” makes it an interesting case.  This is yet another case stemming from the post-release supervision (PRS) debacle, where for years trial courts failed to inform defendants of PRS at the time of the plea, see People v. Catu, 4 N.Y.3d 242 (2005), or to pronounce the term of PRS at the time of sentencing, see People v. Sparber, 10 N.Y.3d 457 (2008).  Here, at the Sparber “resentencing,” the court denied the defendant’s Catu motion to vacate the plea and, pursuant to Penal Law § 70.85, let stand the original sentence without PRS – “No resentence,” the court announced.  The Court found that so-termed “No resentence” to, in fact, be a “proceeding at which ‘sentence is pronounced,’” such that defendant had a right to be present, even though his sentence remained unchanged and even though he was, arguably, not adversely affected by that proceeding.

 

The ruling is interesting in light of the Court’s prior decisions, essentially crafting a PRS/ Sparber proceeding exception to many resentencing rules.  See, e.g., People v. Lingle, 16 N.Y.3d 621 (2011) (holding that a court may not reconsider the length of the incarceratory term of a sentence at a Sparber/ Penal Law § 70.85 proceeding); People v. Boyer, 22 N.Y.3d 15 (2013) (holding that the date of the original sentencing, not the date of the Sparber proceeding controls for predicate sentencing purposes).  If presence is required at a Sparber proceeding, it must be required anytime the sentence is changed/ affected whether for a defendant’s benefit or whether the effect is no change