41 N.Y.2d 941 (1977)
A defendant’s right to be present at sentencing in a felony case, as provided by CPL 380.40(1), can be waived, but such waiver cannot be implied when the defendant is in a nearby detention pen and no effort is made to inform them of their right to be present or return them to the courtroom.
Summary
Defendant Colon pleaded guilty to burglary and was sentenced to six years imprisonment. However, the sentencing occurred while Colon was in a detention pen adjacent to the courtroom, not in the courtroom itself. The New York Court of Appeals reversed the sentence and remitted the case for resentencing. The Court held that while the right to be present at sentencing can be waived, no such waiver occurred here because the defendant was nearby but not informed of his right to be present, nor was an attempt made to bring him back to the courtroom. The court also noted potential prejudice arising from the defendant’s absence during discussions of other outstanding charges.
Facts
Defendant Colon pleaded guilty to the crime of burglary.
After a colloquy with the court, Colon left the courtroom and was placed in a detention pen immediately adjacent to the courtroom.
The sentence of six years’ imprisonment was imposed while Colon was in the detention pen and not in the courtroom.
At the sentencing, Colon’s attorney asked the court to consider three outstanding charges against the defendant.
The prosecution opposed considering these charges unless Colon admitted guilt in open court.
Procedural History
The defendant was sentenced in Supreme Court, New York County.
The Appellate Division affirmed the sentence.
The New York Court of Appeals reversed the Appellate Division’s order insofar as it affirmed the sentence and remitted the case to the Supreme Court for resentencing.
Issue(s)
Whether a defendant’s right to be present at sentencing is violated when the sentence is imposed while the defendant is in a detention pen adjacent to the courtroom, without being informed of the right to be present or an attempt to return them to the courtroom.
Holding
Yes, because while the right to be present at sentencing can be waived, no such waiver can be implied when the defendant is nearby but not informed of their right to be present, nor is an attempt made to bring them back to the courtroom. Further, the defendant’s absence during discussions of other charges could create potential prejudice.
Court’s Reasoning
The Court relied on CPL 380.40 (subd 1), which mandates the defendant’s presence at sentencing in felony cases. The court acknowledged that this right can be waived, citing examples like “obstreperous conduct.” However, the court distinguished the present case, stating that “where, as here, the defendant was in the detention pen immediately adjacent to the courtroom and no effort was made to apprise him of his right to be present, nor was there an attempt made to return him to the courtroom, waiver may not be implied.”
The Court also noted the potential for prejudice, referencing discussions about three outstanding charges against Colon while he was absent. The prosecution’s insistence on an admission of guilt in open court highlighted the significance of Colon’s presence. The Court cited People v. McClain, 35 NY2d 483, 491-492, suggesting that the absence compounded the potential for prejudice.
The Court highlighted that even the District Attorney joined in the request for resentencing, signaling a consensus on the impropriety of the original sentencing procedure.
In essence, the Court emphasized that while the right to be present is not absolute, the circumstances surrounding Colon’s sentencing fell short of the standard required to establish a valid waiver. The lack of communication and the defendant’s proximity to the courtroom underscored the violation of his right. The possibility of prejudice during discussions of other charges further solidified the need for resentencing with the defendant present.