dissenting in part.
I dissent because I believe the trial court erred in considering for sentencing purposes information contained in records that had not been presented into evidence either at trial or at the sentencing hearing. As to the remainder of the majority opinion, however, I fully concur.
Although the formal rules of evidence do not apply in a sentencing hearing, such a hearing “must be fair and just” and provide the defendant with an “effective way of contradicting [any] damaging and prejudicial information.” State v. Locklear, 34 N.C. App. 37, 39-40, 237 S.E.2d 289, 291 (1977), rev’d on other grounds, 294 N.C. 210, 241 *399S.E.2d 65 (1978); N.C.G.S. § 15A-1334(b) (2001). As a general proposition, the sentencing judge is permitted to consider any “circumstances brought out at trial.” State v. Flowe, 107 N.C. App. 468, 472-73, 420 S.E.2d 475, 478, disc. review denied, 332 N.C. 669, 424 S.E.2d 412 (1992).
In this case, the sentencing judge considered, in evaluating the credibility of defendant’s request for a mitigating factor,1 certain Department of Social Services (DSS) records that had been presented to the trial court during the trial for in camera review but which had not been presented into evidence or otherwise been made available to defendant. The sentencing judge, after reviewing these records in camera, noted that defendant’s trial testimony relating to his employment history was “clearly rebutted by the [DSS] records.” Defendant questioned the trial court’s procedure in reviewing the records on the ground that his “credibility ha[d] been challenged by records” he had not seen. After advising defendant he could “take it up on appeal,” the sentencing judge sentenced defendant without granting him the benefit of the requested mitigating factor.
As the information in the DSS records was not evidence in defendant’s trial, it was not within the scope of Flowe. Furthermore, it was not “fair and just” to allow the sentencing judge to consider this information, which was damaging and prejudicial, as defendant had no effective method or opportunity to contradict it. See State v. Midyette, 87 N.C. App. 199, 204-05, 360 S.E.2d 507, 510 (1987), aff’d, 322 N.C. 108, 366 S.E.2d 440 (1988) (new sentencing hearing required where trial court conducted an in camera victim input session and pronounced judgment without ensuring that all information received by the trial court had been known to the defendant and without the defendant having had an opportunity to explain or refute the information).
Therefore, I would vacate the sentence and remand for a new sentencing hearing.
. Defendant testified at trial he had a positive employment history and during the sentencing hearing requested a finding in mitigation pursuant to N.C. Gen. Stat. § 15A-1340.16(e) (19) (2001).