People v. Harris

• Decision Date: 25 February 1992
• Citation: 79 N.Y.2d 909,581 N.Y.S.2d 657,590 N.E.2d 242
• Parties: , 590 N.E.2d 242 The PEOPLE of the State of New York, Respondent, v. Sean HARRIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 657

581 N.Y.S.2d 657

79 N.Y.2d 909, 590 N.E.2d 242

The PEOPLE of the State of New York, Respondent, v. Sean HARRIS, Appellant.

Court of Appeals of New York.

Feb. 25, 1992.

[79 N.Y.2d 910] Miriam J. Hibel and Philip L. Weinstein, New York City, for appellant.

Richard A. Brown, Dist. Atty. (Alexander P. Schlinger, Kew Gardens, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division 169 A.D.2d 733, 564 N.Y.S.2d 481, should be affirmed.

Defendant pleaded 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 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; People v. Perry, 36 N.Y.2d 114, 119, 365 N.Y.S.2d 518, 324 N.E.2d 878). 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 A.D.2d 725, 726, 552 N.Y.S.2d 172; People v. Villegas, 146 A.D.2d 228, 232, 540 N.Y.S.2d 777). Therefore, defendant was not entitled to counsel under the circumstances of this case.

We have examined defendant's remaining argument and conclude that it is not preserved for our review.

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER, TITONE, HANCO...