PEOPLE v. The New York State Association of Criminal Defense Lawyers, Amicus Curiae. (2026)

Judgment, Supreme Court, New York County (Althea E.M. Drysdale, J.), rendered June 7, 2023, convicting defendant, after a jury trial, of burglary in the first degree as a sexually motivated felony (two counts), rape in the first degree (five counts), criminal sexual act in the first degree (two counts) and sexual abuse in the first degree (four counts), and sentencing him to an aggregate term of 13 years, unanimously reversed, on the law and in the interest of justice, the sentence vacated, and the matter remanded for resentencing following a new presentence interview at which defense counsel may appear.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007];  see also People v. Baque, 43 NY3d 26 [2024] ).  There is no basis for disturbing the jury's credibility determinations, particularly its conclusion regarding the victim's lack of consent.

Defendant did not raise any objection to the prosecutor's reading the victim's written statement at sentencing;  thus, his claim is unpreserved, and we decline to review it in the interest of justice (see People v. Hall, 243 AD3d 1070, 1076 [3d Dept 2025], lv denied 45 NY3d 945 [2026] ).  As an alternative holding, we reject it on the merits.  CPL 380.50(2), which “requires the court to allow any victim (or a surrogate) to speak at sentencing” (People v. Hemmings, 2 NY3d 1, 6 [2004] ), “does not explicitly preclude the People, or someone else, from reading a statement on the victim's behalf” (People v. Dennis, 221 AD3d 1278, 1282–1283 [3d Dept 2023], lv denied 40 NY3d 1091 [2024] ).  Given that the intent of the statute is to accord victims the right to be heard at sentencing, the court did not abuse its discretion in allowing the prosecutor to read the victim's impact statement (see id. at 1283).

Defendant also did not preserve his claim that the court's failure to provide the reasons for the sentence it imposed violated his due process rights and his right to effective assistance of counsel (see People v. Nieves, 2 NY3d 310, 315 [2004] ), and we decline to review his claim in the interest of justice.  As an alternative holding, we reject it on the merits.  “[A] court has no obligation to explain its reasons for imposing a particular sentence that is within the statutory parameters” (People v. Minemier, 29 NY3d 414, 419 [2017] ).

Although defendant failed to preserve his argument that under CPL 210.15(2) he was entitled to the presence of counsel at his presentence interview, we reach this issue in the interest of justice (see People v. Esperanza, 203 AD3d 124, 128 [1st Dept 2022];  see also Matter of People v Quality King Distribs., Inc., 209 AD3d 62, 74 [1st Dept 2022] [“Principles of judicial restraint counsel against reaching constitutional issues when an action can be resolved on nonconstitutional grounds”], citing Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 N.Y.2d 531, 535 [1992] ).

Prior to the 1970 enactment of Criminal Procedure Law article 390, “New York statutory provisions [were] silent on the question of whether the offender and his counsel should be apprised of the contents of [presentence] reports” (John P. Higgins, Confidentiality of Presentence Reports, 28 Alb L Rev 12, 16 [1964];  compare CPL 390.50[2] ).  Yet, in this aspect of presentence proceedings, courts retained an ability to exercise their “residual judicial discretion” to direct disclosure in appropriate cases (28 Alb L Rev at 16–17;  see People v. Peace, 18 N.Y.2d 230, 237 [1966], cert denied 385 U.S. 1032 [1967];  see also People v. Perry, 36 N.Y.2d 114, 119 [1975] [prior to the enactment of the CPL, “disclosure of presentencing reports [wa]s a matter within the discretion of the sentencing court”], citing Peace ).

Likewise in the present context, at worst for defendant the absence of a provision indicating whether counsel is permitted to attend the presentence interview leaves the issue to the court's discretion, reviewable for abuse or improvident exercise thereof (see Perry, 36 N.Y.2d at 120–121;  see also CPL 210.15[2];  Hurrell–Harring v. State of New York, 15 NY3d 8, 20–21 [2010];  id. at 31 n 5 [Pigott, J., dissenting] [observing CPL 170.10, 180.10, and 210.15 contain similar requirements with respect to the defendant's rights];  Matter of DeBellis v Property Clerk of City of N.Y., 79 N.Y.2d 49, 56 [1992], citing CPL 1.20[16];  People v. Ross, 67 N.Y.2d 321, 325–326 [1986] [applying CPL 170.10] ).

Here, in advance of the presentence interview, defendant filed a substantial application requesting that counsel be permitted to attend.  Because the extent of defendant's sentence was subject to the court's decision following his trial conviction and his application noted, among other things, the applicability of SORA at the conclusion of his incarceratory term, Supreme Court's denial of defense counsel's attendance at the presentence interview was an improvident exercise of discretion.  Accordingly, defendant's sentence should be vacated, and the matter remanded for resentencing after a presentence interview at which defense counsel may appear.

M - 4812—People v. Damon Lee

Motion by defendant to strike the People's brief, or alternatively to strike Point III, denied.