People v. Herbert

135 A.D.3d 659, 23 N.Y.S.3d 572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2016
• Docket: 59 2402/03
• Status: Published

Opinion

Judgment of resentence, Supreme Court, New York County (Rena K. Uviller, J.), rendered April 25, 2012, resentencing defendant to a term of nine years, with five years’ postrelease supervision, unanimously affirmed.

The court properly resentenced defendant in his absence. The record supports the court’s conclusion that, under the unusual circumstances presented, defendant forfeited his right to be present and sentencing in absentia was permissible (see People v Halls, 85 AD3d 632 [1st Dept 2011], lv denied 17 NY3d 859 [2011]). The Correction Law § 601-d proceeding to add postrelease supervision was adjourned 13 times over a 17-month period, because the correctional authorities repeatedly indicated that defendant’s behavior and mental condition were incompatible with transporting him to New York County for resentencing. In order to prevent defendant from being released without any supervision, the court finally imposed the resentence in defendant’s absence, three days before his prison term expired. Concur — Tom, J.R, Sweeny, Gische and Kapnick, JJ.