PEOPLE v. BREAUX (2005)

Judgment, Supreme Court, New York County (Philip M. Grella, J.), rendered November 3, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 8 1/212 to 17 years, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing in compliance with CPL 390.20(1), and otherwise affirmed.

On the date of sentencing, defense counsel objected to the adequacy of the pre-sentence report.   Pages three and four of that document, which are entitled the “Social History Summary,” were not completed.   At the top of each of these pages, there is a notation that the Department of Correction failed to produce defendant for an interview on September 24, 2004 and September 29, 2004.

At sentencing, defense counsel asserted that defendant was produced, but not interviewed as part of the pre-sentence investigation.   Counsel requested an adjournment so that defendant could be interviewed by the Probation Department.   The court denied the request, but it offered defendant an opportunity to supplement or refute any information in the report at sentencing.

The pre-sentence report has been considered potentially “the single most important document at both the sentencing and correctional levels of the criminal process” (People v. Hicks, 98 N.Y.2d 185, 189, 746 N.Y.S.2d 441, 774 N.E.2d 205 [2002] [internal citation omitted] ).   Here, as a result of deficiencies in the pre-sentence report, the sentencing judge lacked sufficient information bearing upon the propriety of the sentence to be imposed.   Further, defendant affirmatively requested an interview by the Probation Department, and his counsel argued that the intimidating nature of speaking in court was not an adequate substitute therefore.   In the unique circumstances presented, we vacate the sentence and remand for resentencing based upon a pre-sentence report which meets the statutory requirements (see CPL 390.30;  People v. Saez, 121 A.D.2d 947, 505 N.Y.S.2d 148 [1986], affd. 69 N.Y.2d 802, 513 N.Y.S.2d 380, 505 N.E.2d 945 [1987];  People v. Halaby, 77 A.D.2d 717, 718, 430 N.Y.S.2d 717 [1980] ).

We have considered and rejected defendant's additional claims.