THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TYRELL REEDER DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16 [1]). When the appeal was previously before us, we held the case, reserved decision, and remitted the matter to County Court “for clarification of whether defendant was properly resentenced to a three-year term of postrelease supervision” (People v Reeder, 240 AD3d 1435, 1437 [4th Dept 2025]). We noted that, although the record included an amended uniform sentence and commitment form reflecting that the period of postrelease supervision had been changed from an illegal term to a legal term of three years, and although the People asserted that defendant had been properly resentenced, the record did not establish that defendant was properly resentenced (id. at 1436-1437). We further noted that, if defendant was properly resentenced, his appeal insofar as it challenges the original sentence would be dismissed (id. at 1437). We have now received a transcript of an appearance on July 2, 2024. Although the court acknowledged during that appearance that it had originally “impose[d] a sentence on [defendant] with an incorrect term [of postrelease supervision],” the court indicated that, unless it heard any objections, it would issue the abovementioned amended uniform sentence and commitment form reflecting that three years of postrelease supervision had been imposed, and the People “consent[ed] to making it retroactive to the original sentence.” We conclude that the July 2, 2024 appearance did not constitute a resentencing, and that defendant's contentions are properly reviewable on appeal from the judgment of conviction (see generally People v Jones, 172 AD3d 1774, 1775 [3d Dept 2019]; People v Jackson, 152 AD3d 796, 796 [2d Dept 2017]).

Defendant contends that he was denied due process by the court's failure to hold a hearing before imposing an enhanced sentence. We reject that contention. “Due process requires that, before imposing an enhanced sentence [based on a defendant's violation of a plea condition], the court conduct an inquiry sufficient for it to determine that the defendant indeed violated the plea condition” (People v Moore, 210 AD3d 1111, 1112 [2d Dept 2022], lv denied 39 NY3d 1142 [2023] [internal quotation marks omitted]; see People v Valencia, 3 NY3d 714, 715 [2004]; People v Outley, 80 NY2d 702, 713 [1993]). That does not necessarily mean, however, that the court must hold an evidentiary hearing (see Valencia, 3 NY3d at 715-716; People v Brown, 221 AD3d 1565, 1566 [4th Dept 2023]; People v Murdock, 175 AD3d 1560, 1561-1562 [2d Dept 2019]), and “[t]he format of that inquiry is within the discretion of the court” (People v Royal, 227 AD3d 1375, 1376 [4th Dept 2024], lv denied 42 NY3d 929 [2024]). Here, defendant was properly warned at the time he pleaded guilty that, should he fail to appear at sentencing, the court would consider imposing an enhanced sentence, and his “failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement” (People v Figgins, 87 NY2d 840, 841 [1995]). On that basis, the court “was no longer bound by the agreed-upon sentence” (People v Baker, 204 AD3d 1471, 1472 [4th Dept 2022], lv denied 38 NY3d 1069 [2022] [internal quotation marks omitted]; see Brown, 221 AD3d at 1566; see generally Murdock, 175 AD3d at 1561-1562). Moreover, when defendant failed to appear on the scheduled sentencing date, the court adjourned the matter and issued a bench warrant in an attempt to bring him in for sentencing. Before imposing the enhanced sentence on a later date, the court conducted a sufficient inquiry concerning defendant's failure to appear (see Royal, 227 AD3d at 1376).

Defendant further contends that the court erred in sentencing him in absentia. Although a defendant has the right to be present at every material stage of trial (see People v Ciaccio, 47 NY2d 431, 436 [1979]), including sentencing (see CPL 380.40 [1]), the right to be present may be waived (see People v Parker, 57 NY2d 136, 139 [1982]). “If a defendant fails to appear at sentencing, he ․ may be deemed to have waived the right to be present only if [he] was previously advised of the consequences of failing to appear at sentencing” (People v Rodman, 104 AD3d 1186, 1186-1187 [4th Dept 2013], lv denied 22 NY3d 1202 [2014]; see People v Major, 68 AD3d 1244, 1245 [3d Dept 2009], lv denied 14 NY3d 772 [2010]; People v Syrell, 42 AD3d 947, 947-948 [4th Dept 2007]). Here, as noted above, when defendant did not appear for sentencing, the court issued a warrant and adjourned the matter to allow defendant to be brought in for sentencing and, before sentencing defendant, the court conducted a sufficient inquiry concerning defendant's failure to appear (see Rodman, 104 AD3d at 1186-1187; People v Cole, 241 AD2d 946, 946 [4th Dept 1997], lv denied 90 NY2d 903 [1997]). Under these circumstances, we cannot conclude that the court abused its discretion in sentencing defendant in absentia.

Contrary to defendant's further contention, the enhanced sentence is not unduly harsh or severe. We have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.

We note, however, that the certificate of disposition and the uniform sentence and commitment form incorrectly state that defendant was sentenced as a second felony offender, and they must therefore be amended to reflect that he was actually sentenced as a second felony drug offender (see People v Williams [appeal No. 1], 235 AD3d 1250, 1250 [4th Dept 2025], lv denied 43 NY3d 1012 [2025]). In addition, the certificate of disposition must be further amended to reflect that defendant received three years of postrelease supervision.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court