People v. Gomez
| Decision Date | 12 March 1980 |
| Citation | 103 Misc.2d 352,425 N.Y.S.2d 776 |
| Parties | The PEOPLE of the State of New York v. Teresa GOMEZ, Defendant. |
| Court | New York County Court |
R. Michael Tantillo, Asst. Dist. Atty., Canandaigua, for plaintiff.
Neal P. McClelland, Rochester, for defendant.
Decision and Judgment
This is an appeal from a sentence imposed by a judge other than the one who accepted the guilty plea.
Appellant pled guilty before Acting City Court Judge Frederic T. Henry, Jr. A probation report was ordered and the case was adjourned for sentence. The matter came on for sentence before Judge Avery. Over objection that sentence should be imposed only by Judge Henry, Judge Avery imposed sentence.
On this appeal, defendant argues that (1) sentence by a substitute judge was error, (2) that the court erred in denying a youthful offender request that the press be excluded from sentencing and not reported in the paper, and (3) that the sentence was excessive.
Sentence was a conditional discharge and intermittent sentence to jail on two weekends. As noted by the trial court, the defendant had a record of truancy, incorrigibility, alcohol involvement and placement as a juvenile with the Division for Youth. On such record, this court is unable to say that a shock sentence was an abuse of discretion.
Next, denial of defendant's motion to exclude the press was not reversible error. The youthful offender statute (CPL § 720.15) has been amended several times and now mandates sealing the record to the public for an apparently eligible youth in misdemeanor cases. Sealing the record does not mandate physical exclusion of the press and certainly does not authorize an order, in prospectu, restraining the press from reporting the case. If the motion be deemed a request for granting youthful offender status to an apparently eligible youth and the ruling to be a denial of such request, it did not invalidate the sentencing process because, therein, such status was granted.
Judge Avery apparently pronounced sentence on appellant's co-defendant the same day. Apart from this, there does not appear to be any reason for imposition of sentence in this case by the judge other than the one who took the plea.
Ordinarily, sentence should be imposed by the judge who heard the case. (State v. Brennan, 115 N.J.Super. 400, 279 A.2d 900; U. S. v. Bowser, (4th Cir.) 497 F.2d 1017, cert. den. 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91, cert. den. 423 U.S. 997, 96 S.Ct. 427, 46 L.Ed.2d 372). In this case, of course, there was no trial so that many of the arguments for continuity of judges are inapplicable. However, in taking a plea, the judge could and should be effected by the attitude and demeanor of the defendant. Did the defendant readily admit her guilt? Did she appear remorseful? Did she readily admit the substantive facts which constituted the offense? On the other hand, did she appear defiant, lacking in remorse, or was she evasive in admitting the culpable facts? These matters indicate that it is preferable that the same judge should impose the sentence, whether after trial or plea. Although there is no allegation of broken plea bargain in this case, sentence by the same judge would minimize the possibility of such.
It is clear that there is no constitutional right to a sentence by the same judge who received the verdict and that the general rule is that a judge who is substituted in a criminal case at a stage of the proceedings, where his only duty is to impose sentence, has jurisdiction to act. (Annotation Criminal Case Substitution of Judge, 83 A.L.R. 1032, p. 1041). Substitution has been held to be proper in cases involving a change in the membership of a three judge court. (People v. Bork, 96 N.Y. 188; People v. Brown, 153 App.Div. 234, 138 N.Y.S. 7), where the trial judge is deceased (State v. Henderson, 243 La. 233, 142 So.2d 407, cert. den. 371 U.S. 942, 83 S.Ct. 324, 9 L.Ed. 276), retired (State v. Tettamble, (Mo.) 450 S.W.2d 191; Fogg v. Comm., 215 Va. 164, 207 S.E.2d 847, but cf. State v. McClain, 186 Tenn. 401, 210 S.W.2d 680), promoted to a higher court (State v. Kelly, 5 Ariz.App. 280, 425 P.2d 850), subsequently disqualified (State...
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