Opinion
2018-06595 Ind. No. 5267/14
08-12-2020
The PEOPLE, etc., Respondent, v. Felix RODRIGUEZ, Appellant.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Daniel Berman of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Daniel Berman of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
This matter must be remitted to the Supreme Court for resentencing. The defendant's fundamental right to be "personally
present at the time sentence is pronounced" ( CPL 380.40[1] ; see People v. Rossborough, 27 N.Y.3d 485, 34 N.Y.S.3d 399, 54 N.E.3d 71 ) extends to resentencing or to the amendment of a sentence (see People v. Robinson, 111 A.D.3d 963, 964, 975 N.Y.S.2d 464 ; People v. Weekes, 28 A.D.3d 499, 500, 813 N.Y.S.2d 188 ). While a defendant convicted of a felony may waive the right to be present at resentencing, this waiver must be expressly made (see People v. Stewart, 28 N.Y.3d 1091, 45 N.Y.S.3d 318, 68 N.E.3d 43 ). A "[w]aiver results from a knowing, voluntary and intelligent decision" ( People v. Rossborough, 27 N.Y.3d at 488, 34 N.Y.S.3d 399, 54 N.E.3d 71 [internal quotation marks omitted] ). Here, the defendant was not produced at resentencing and the record is devoid of any indication that he expressly waived his right to be present. Thus, the Supreme Court's failure to have the defendant produced at the resentencing proceeding violated the defendant's fundamental right to be present at the time of sentence. Accordingly, we remit the matter to the Supreme Court, Kings County, for resentencing.
The defendant's contention that the resentence was excessive is academic in light of our determination. We note that the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Bradshaw, 18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645 ).
RIVERA, J.P., AUSTIN, IANNACCI and CHRISTOPHER, JJ., concur.