| People v Carter |
| 2008 NY Slip Op 04235 [51 AD3d 1139] |
| May 8, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ricky LeeCarter, Jr., Appellant. |
—[*1] David S. Hartnett, District Attorney, Cortland (Karen L. Howe of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered January 4, 2007, convicting defendant upon his plea of guilty of the crime of burglary inthe third degree.
In satisfaction of a six-count indictment, defendant entered a plea of guilty to burglary in thethird degree. County Court promised to sentence defendant to a term of imprisonment of 2 to 4years, conditioned upon his return to court on the date of sentencing, avoidance of rearrest andcooperation with the Probation Department in preparing its presentence report. County Courtadvised defendant that if any condition was violated, it would not be bound by the plea bargainand defendant would be subject to any sentence authorized by law.
Upon defendant's failure to appear on the sentencing date, his counsel advised County Courtthat he had spoken to defendant's parents, who informed him that defendant was "eight statesover," but could not provide any further information. County Court sentenced defendant inabsentia, as a second felony offender, to a term of imprisonment of 3½ to 7 years andordered restitution in the amount of $60. Defendant appeals, contending, among other things, thathis failure to appear at sentencing did not constitute a waiver of his right to be present inasmuchas County Court never informed him that sentencing would proceed in his absence as aconsequence of his nonappearance.
CPL 380.40 (1) provides that a "defendant must be personally present at the time [*2]sentence is pronounced." While this right may be waived (seePeople v Stroman, 36 NY2d 939, 940 [1975]), where "a defendant fails to appear atsentencing, he or she may be deemed to have waived the right to be present only if the defendantwas previously advised of the consequences of failing to appear at sentencing" (People v Syrell, 42 AD3d 947,947-948 [2007]; see People v Smith, 68 NY2d 725, 726-727 [1986]; People v Torra, 8 AD3d 751, 751[2004]; see generally People v Parker, 57 NY2d 136, 140-141 [1982]). Here, althoughCounty Court informed defendant that he could be subject to an enhanced sentence if he failed toappear for sentencing, the court did not specifically articulate that sentencing could proceed inhis absence (compare People vBennett, 42 AD3d 813, 814 [2007]; People v Walker, 30 AD3d 823, 823 [2006]; People vTorra, 8 AD3d at 751-752; People v Stevens, 159 AD2d 662, 662 [1990], lvdenied 76 NY2d 796 [1990]). Moreover, even where a defendant is found to have waived theright to be present at sentencing, proceeding with sentencing in absentia is not automaticallyauthorized; rather "the trial court must exercise its sound discretion upon consideration of allappropriate factors, including the possibility that defendant could be located within a reasonableperiod of time" (People v Parker, 57 NY2d at 142; see People v Syrell, 42 AD3dat 948; People v Ramos, 139 AD2d 850, 851 [1988]). Here, just one hour after the timeset for defendant's appearance, County Court sentenced him without first taking any reasonablemeasures to secure his attendance. For these reasons, we find that County Court did not satisfythe dictates of Parker prior to sentencing defendant in absentia and, therefore, vacatur ofthe sentence is required. Additionally, County Court erred in imposing restitution withoutconducting a hearing to determine the amount thereof (see Penal Law § 60.27 [2];CPL 400.30).
In light of our decision, defendant's remaining contentions are rendered academic.
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofCortland County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.