People v. Villegas

• Decision Date: 20 April 1989
• Citation: People v. Villegas, 540 N.Y.S.2d 777, 146 A.D.2d 228 (N.Y. App. Div. 1989)
• Parties: The PEOPLE of the State of New York, Respondent, v. Eugenio VILLEGAS a/k/a Egenilo Villegas, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 777

540 N.Y.S.2d 777

146 A.D.2d 228

The PEOPLE of the State of New York, Respondent, v. Eugenio VILLEGAS a/k/a Egenilo Villegas, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 20, 1989.

Joseph M. Sise, Amsterdam, of counsel (Stanley R. Kaplan, with him on the brief, Robert T. Johnson, New York City, attorney), for respondent.

Richard Joselson, of counsel (Philip L. Weinstein, New York City, attorney), for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, KASSAL, WALLACH and SMITH, JJ.

WALLACH, Justice.

Under Criminal Procedure Law § 390.20(1), the court is required to consider a presentence report before imposing sentence in a felony case. Previously, we have been reluctant to hold that such a report can be waived by the defendant (People v. Andujar, 110 A.D.2d 606, 488 N.Y.S.2d 653; People v. Brock, 48 A.D.2d 790, 369 N.Y.S.2d 154). The People now ask us to hold that it can be forfeited. Unlike waiver, which results from a knowing decision to relinquish a right and involves an evaluation of the defendant's state of mind, forfeiture results as a matter of public policy by operation of law and is based on objective facts without regard to the defendant's actual state of mind (People v. Corley, 67 N.Y.2d 105, 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090). As disinclined as we have been to hold that a presentence report can be waived, we are no more inclined to hold that it can be forfeited.

By indictment filed September 21, 1984, defendant was charged with rape in the first degree, sodomy in the first degree, kidnapping in the second degree, robbery in the first and second degrees, two counts of assault in the second degree and criminal possession of a weapon in the fourth degree. The indictment was satisfied on May 15, 1985 by defendant's plea of guilty to sexual abuse in the first degree given in exchange for a promise that his sentence would not exceed 2 1/2 to 5 years in prison. The court permitted defendant, who had been out on bail, to remain at liberty pending sentence, which was scheduled for June 12, 1985, but warned him, in no uncertain terms, that if he did not appear for sentencing or cooperate with the Department of Probation the sentence would be enhanced to 3 1/2 to 7 years. On June 12, 1985, defendant did not appear in court for sentencing, whereupon the court issued a bench warrant for his arrest. Two months later, on September 6, 1985, the court, after conducting a hearing at which defendant was absent but represented by counsel, determined that defendant had voluntarily absented himself from the proceedings and that the People had made diligent efforts to locate him, and accordingly sentenced him in absentia. Before pronouncing sentence, the court heard argument from defense counsel, who urged imposition of the originally negotiated sentence, but the court imposed the enhanced sentence it said it would in the event of defendant's non-appearance. The court did not have before it a presentence report from the Department of Probation.

Subsequently, defendant was apprehended and, on October 29, 1985, brought before the sentencing judge, who informed him that he had been sentenced in absentia on September 6, 1985 and directed that the sentence be executed. Defendant then asked, "Don't I have a lawyer?", to which the court responded, "Tell him he has been sentenced in absentia."

On December 18, 1985, the Department of Probation issued what it denominated as a "postsentence report". With respect to defendant's failure to appear for sentencing, the report stated that defendant told the probation officer who interviewed him that at or about the time the sentencing was scheduled he was enrolled in a treatment program for alcohol dependence on Ward's Island, and had forgotten the date he was supposed to appear in court. The report also noted the ordering of a presentence report by the court on May 15, 1985 when defendant pled guilty, and defendant's subsequent failure to appear for several scheduled appointments with probation officials. There is no indication in the record that this report was ever presented to or considered by the court.

On appeal, defendant first argues that the sentence should be vacated and the matter remanded for resentencing because of the court's "plain" violation of CPL § 390.20(1), which provides: "In any case where a person is convicted of a felony, the court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation." Against this, the People argue that defendant, by absconding, forfeited his "statutory right to have a sentencing court review a pre-sentence report before imposing sentence". This argument is based primarily on People v. Corley, 67 N.Y.2d 105, 500 N.Y.S.2d 633, 491 N.E.2d 1090 supra, wherein it was held that the defendant's statutory right to be present at sentencing (CPL § 380.40[1] ) can be forfeited "by absconding to frustrate scheduled proceedings before the Trial Judge in connection with sentencing." (at p. 110, 500 N.Y.S.2d 633, 491 N.E.2d 1090). If, as a matter of public policy, the right to be present at sentencing can be forfeited by a failure to appear at sentencing, then, for the same policy reasons, the People argue, a failure to cooperate in the presentence investigation should result in a forfeiture of the right to a presentence report.

This analogy is not quite complete. Whereas a defendant's voluntary absence from the proceedings necessarily requires that he be sentenced in absentia, neither such absence, nor a refusal to cooperate with probation officials, necessarily frustrates the preparation of a presentence report. To be sure, the report will not be as thorough and informative as it would be were the defendant available and amenable to interview, and there will be cases where information relevant to the question of sentence beyond what is already known to the court at the time of conviction cannot be gathered unless the defendant does cooperate. Nevertheless, the applicability of the statute is not made to depend upon the defendant's cooperation or the availability of information about him. No less crucial than the...