This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 69
The People &c.,
Respondent,
v.
Ronald D. Rossborough,
Appellant.
Christine Seppeler, for appellant.
Eric R. Schiener, for respondent.
PIGOTT, J.:
The issue on this appeal is whether a defendant who
pleaded guilty to a felony may waive his or her right to be
present at sentencing. We hold that such a waiver is permissible
under the circumstances herein.
After committing a series of crimes in three different
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counties, defendant took pleas in each, the last being in Wyoming
County. There, defendant was charged with three counts of
criminal possession of a forged instrument in the second degree
(Penal Law § 170.25), attempted grand larceny in the third degree
(Penal Law §§ 110.00, 155.35) and grand larceny in the third
degree (Penal Law § 155.35). He pleaded guilty to grand larceny
in the third degree (a class D felony) in full satisfaction of
the indictment on the condition that he would be sentenced as a
second felony offender to an indeterminate term of 3 to 6 years'
imprisonment to run concurrently with sentences he was serving
for convictions in Allegany and Wyoming Counties.
At the plea proceeding, County Court accepted
defendant's plea, adjudicated him a second felony offender, and
set a sentencing date. Defense counsel informed the court that
defendant wanted to waive his personal appearance at sentencing.
After apprising defendant of his "absolute right to be here for
the sentencing," the court stated that if defendant wished to
appear at sentencing solely by his attorney, he could do so. The
court cautioned, however, that should it disagree with the
proposed sentence or if circumstances indicated that the
negotiated plea agreement would not be honored, defendant would
have to appear for sentencing. The court reiterated the terms of
the plea agreement to defendant, and, upon receiving assurances
that defendant understood the terms and "absolutely" wanted to
waive his personal appearance at sentencing, granted defendant's
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request.
On the date of sentencing, defense counsel appeared on
defendant's behalf. The court explained that it had received the
presentence report and asked defense counsel if he had anything
to add and inquired if there were any errors in the report. When
counsel responded that the report was satisfactory, the court
sentenced defendant in accordance with the plea agreement.
On appeal, defendant argued that County Court erred in
sentencing him in absentia citing Criminal Procedure Law §
380.40. The Appellate Division rejected defendant's contention,
holding that the record established "that defendant waived his
right to be present at sentencing, having specifically requested
at the plea proceeding that he be permitted to waive his personal
appearance at sentencing" (113 AD3d 1114, 1114 [4th Dept 2014],
citing People v Condon, 10 AD3d 811, 812-813 [3d Dept 2004], lv
denied 4 NY3d 742 [2004]). A Judge of this Court granted
defendant leave to appeal, and we now affirm.
Defendant contends that County Court violated CPL
380.40 (1) by permitting him to waive his presence for sentencing
and in pronouncing judgment in his absence. We disagree. CPL
380.40 provides, with limited exceptions, that the "defendant
must be personally present at the time sentence is pronounced"
(CPL 380.40 [1]). In situations where the sentence is to be
pronounced for a misdemeanor or petty offense, a defendant may
move to dispense with the personal presence requirement, and,
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with the court's permission, may be sentenced in absentia so long
as the defendant executes a waiver "reciting the maximum sentence
that may be imposed for the offense and stating that the
defendant waives the right to be personally present at the time
sentence is pronounced" (CPL 380.40 [2]). On its face, the
statute provides for no similar exception for felony defendants.
But this Court has recognized exceptions to the general
rule that a defendant convicted of a felony must be personally
present at sentencing. A defendant who absconds during trial or
before sentencing, for example, is said to forfeit any right to
be present (see People v Corley, 67 NY2d 105, 109-110 [1986];
People v Sanchez [Rivera], 65 NY2d 436, 444 [1985] ["a defendant
who is properly tried in absentia may during his continued
absence also be sentenced in absentia"]).
This case, one of first impression, presents the
question whether a defendant convicted of a felony may expressly
waive the right to be present at sentencing. In People v Stroman
(36 NY2d 939 [1975]), we declined to find an implied waiver of
that right where the defendant was sentenced in absentia,
notwithstanding the fact that defendant was in a detention pen
adjacent to the courtroom (see id. at 940). We held that waiver
could not be implied because no effort had been made to apprise
the defendant of his right to be present, nor had there been any
attempt to bring the defendant into the courtroom (see id.).
We conclude, however, that a defendant may expressly
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waive his right to be present. "[W]aiver results from a knowing,
voluntary and intelligent decision" (Corley, 67 NY2d at 110).
Although CPL 380.40 protects a defendant's fundamental right to
be present at sentencing (see Peter Preiser, Practice
Commentaries, McKinney's Cons Laws of New York, Book 11A, CPL
380.40, at 271), that fundamental right may be waived just as
many other fundamental rights may be similarly waived (see e.g.
People v Mox, 20 NY3d 936, 938 [2012] [defendant may waive right
to a jury trial by pleading guilty]; People v Henriquez, 3 NY3d
210, 216 [2004] [defendant may voluntarily waive the right to the
effective assistance of counsel]; People v Smith, 92 NY2d 516,
520 [1998] [defendant may waive fundamental right to counsel];
People v Epps, 37 NY2d 343 [1975], cert denied 423 US 999 [1975]
[defendant in custody may waive his right to be present at
trial]). A defendant's right to be present at sentencing does
not fall within the class of those fundamental rights that may
not be waived, particularly where a defendant is receiving the
sentence to which he knowingly and voluntarily agreed in a plea
bargain.
CPL 380.40 exists for the protection of the defendant,
and if a defendant knowingly, voluntarily and intelligently
informs the court that he desires to waive this fundamental
right, he is entitled to do so. This defendant specifically
sought to waive this right, did so on the record in the presence
of his attorney, was apprised by the court that he had an
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absolute right to personally appear, and expressly agreed to have
his attorney appear at sentencing on his behalf. Moreover, the
court assured defendant that it would not sentence him in
absentia if circumstances indicated that the plea agreement could
not be honored. Under these circumstances, defendant, having
expressly waived his right to personally appear in the presence
of his counsel, cannot be heard to complain that County Court
erred in granting his specific request. Accordingly, the order
of the Appellate Division should be affirmed.
* * * * * * * * * * * * * * * * *
Order affirmed. Opinion by Judge Pigott. Chief Judge DiFiore
and Judges Rivera, Abdus-Salaam, Stein and Garcia concur. Judge
Fahey took no part.
Decided June 2, 2016
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