THE PEOPLE &C., RESPONDENT, v. SEAN HARRIS, APPELLANT.
79 N.Y.2d 909, 590 N.E.2d 242, 581 N.Y.S.2d 657 (1992).
February 25, 1992
2 No. 128 SSM 7
Decided February 25, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Miriam J. Hibel, for Appellant.
Submitted by Alexander P. Schlinger, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant pled guilty to attempted burglary in the second degree in
satisfaction of an indictment charging him with second degree burglary
and criminal mischief. At the plea allocution, defendant, who was
represented by counsel, was promised a conditional probationary
sentence but was warned that he could be sentenced in absentia to a
prison term of 2-1/3 to 7 years if he failed to appear for sentencing.
Defendant did not appear and the sentencing proceeding was adjourned.
Defendant again failed to appear, although his counsel was present.
The sentencing court determined after a hearing that defendant's
absence was voluntary and sentenced him to 2 to 6 years in prison.
Several months later, defendant was arrested and returned to court on
a bench warrant and the sentence was summarily executed. Defendant's
counsel was not present, and defendant did not request an opportunity
to explain his absence at sentencing and was not asked to do so.
Defendant argues that he was denied due process and the right to
counsel at execution of sentence. Sentencing is a critical stage of a
criminal proceeding which implicates the right to counsel (Mempa v
Rhay, 389 US 128; People v Perry, 36 NY2d 114, 119). However, where a
defendant is sentenced in absentia while represented by counsel, the
critical stage of the sentencing process and, hence, the criminal
proceeding itself for all nisi prius court purposes, terminates upon
the imposition of sentence. Subsequent execution of the sentence is
not a critical stage of the defendant's criminal proceeding (see,
People v Scott, 158 AD2d 725, 726; People v Villegas, 146 AD2d 228,
232). Therefore, defendant was not entitled to counsel under the
circumstances of this case.
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. SEAN HARRIS, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
Defendant pled guilty to attempted burglary in the second degree in satisfaction of an
At the plea allocution, defendant, who was represented by counsel, was promised a conditional
The sentencing court determined after a hearing that defendant's absence was voluntary and
and defendant did not request an opportunity to explain his absence at sentencing and was not
Defendant argues that he was denied due process and the right to counsel at execution of
Sentencing is a critical stage of a criminal proceeding which implicates the right to counsel.
However, where a defendant is sentenced in absentia while represented by counsel, the
Subsequent execution of the sentence is not a critical stage of the defendant's criminal
We have examined defendant's remaining argument and conclude that it is not preserved for our
On review of submissions pursuant to section 500.4 of the Rules,
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock and Bellacosa concur.
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