| People v Garcia |
| 2010 NY Slip Op 04846 [74 AD3d 477] |
| June 8, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JesusGarcia, Appellant. |
—[*1]
Judgment of resentence, Supreme Court, New York County (Edward J. McLaughlin, J.),rendered December 21, 2009, resentencing defendant, as a second felony offender, to a term ofnine years, unanimously reversed, on the law, and the matter remanded for resentencing.
The court improperly resentenced defendant in his absence. When the court resentenceddefendant on his drug conviction after granting his CPL 440.46 application, he was entitled to bepresent for the actual pronouncement of the new sentence, notwithstanding his presence at aproceeding three days earlier at which the terms of the new sentence were discussed (seePeople v Lucks, 91 AD2d 896 [1983]). Defendant did not waive his presence for sentencing;on the contrary, counsel specifically objected to her client's absence. A defendant's right to hearthe pronouncement of a sentence is guaranteed by statute (see CPL 380.40; People v Sparber, 10 NY3d 457,469-471 [2008]), and it does not depend on whether the defendant would have something tocontribute. Accordingly, there is no reason to create an exception for cases where all mattersrelating to sentencing were resolved at prior proceedings; such an a exception would render adefendant's presence unnecessary in many cases involving plea bargains.
In addition, the record is unclear whether the court imposed sentence on both of the countson which defendant was convicted (see CPL 380.20).
We have considered and rejected defendant's requests for additional relief.Concur—Gonzalez, P.J., Sweeny, Richter, Abdus-Salaam and RomÁn, JJ.