DECISION and ORDER Legal Issue Is a pre-sentencing report necessary pursuant to CPL §390.20(2) before sentencing on a Violation of Probation for a Felony Conviction. Procedural History On May 3, 2017, a Sullivan County Grand Jury returned Indictment 48-2017, charging defendant, Lavel Fingers, with Aggravated Driving While Intoxicated: With A Child Less Than 16 (2 counts) as a class E Felony under New York States’ Vehicle and Traffic Law, and Driving without Headlights as a Vehicle and Traffic Violation. These charges stem from defendant’s operation of a motor vehicle while under the influence of marijuana in the Village of Liberty, Sullivan County, while two-year old, Mason Doe, and five-year old, Royce Doe, were passengers therein. Pursuant to the plea bargain on May 9th, 2017, the Defendant plead guilty to misdemeanor Driving While Ability Impaired by Drugs (DWAI drugs) (V&TL §1192.1), in lieu of the Leandra’s Law felony offense. The Court in accepting the plea to the reduced charge of DWAI drugs considered the defendant’s previous negative performance on misdemeanor probation supervision, which had been imposed for his 2012 conviction in the Town of Liberty Justice Court for Resisting Arrest which had been taken in satisfaction of Penal Law charges including Endangering the Welfare of a Child, Criminal Mischief in the Fourth Degree, Obstructing Governmental Administration in the Second Degree, and Disorderly Conduct. The Court was also aware that the Defendant was violated on the Term of misdemeanor probation for his failure to comply with probation and he was sentenced to a term of incarceration. On November 9, 2017, at the time of the felony plea bargain, the Court awarded the Defendant an interim certificate of relief from civil disabilities, to enable the Defendant to continue working while pending sentencing. The Defendant was also given Parker warnings in that if he violated terms and conditions of Pre-Trial Release, the Court would not be bound by the plea bargain limitations and would be free to impose whatever sentence it deemed appropriate under the law. However, if defendant complied with all the pre-sentencing conditions, the Court agreed to impose the plea-bargained sentence of only a conditional discharge. The matter was thereupon scheduled for sentencing on February 1, 2018. While pending sentencing, the Court was apprised by the Probation Department that the defendant failed to attend treatment as directed, and repeatedly tested positive for marihuana as was also noted in his Pre-Sentence Investigation Report (PSR). In addition to failing to comply with the drug and alcohol conditions of his pre-trial release, defendant failed to appear before this Court on February 1, 2018 and the sentencing was adjourned at the Defendant’s Counsel’s request to the next day February 2, 2018 when the Defendant again failed to appear. The Court issued a bench warrant for defendant for his failure to appear for sentencing as directed. On February 3, 2018, the defendant was arrested upon the warrant. On February 5, 2018 at his arraignment on the warrant he was remanded to jail, and Defendant’s counsel1 requested an adjournment of sentencing to February 22, 2018. On that date the Defendant was sentenced, in violation of his Parker Warnings, to a term of three years’ probation supervision, with drug and alcohol conditions, and thirty days in the Sullivan County Jail, together with a mandatory fine and surcharge; his license to operate a motor vehicle was revoked, and he was directed to attend a session of the Victim Impact Panel. Eight months later on November 13, 2018, the Sullivan County Probation Department filed a Petition for Violation of Probation Supervision, informing the Court as follows: “Since being placed on Probation in February, the defendant has not provided a clean urine sample. The defendant has tested positive for marihuana on every drug test administered by both the Probation Department and his treatment Provider (Choices — Tom Rue). Probation tests were administered on 5/1, 8/20, and 10/16. This department has given the defendant several chances to work on his addictive behavior to no avail. The defendant’s attendance at treatment has also been poor as he missed 4 of his past 5 scheduled groups (10/26, 10/31, 11/7, and 11/9). Due to the defendant’s non-compliance with probation and treatment, it is this department’s belief that the defendant is no longer a suitable candidate for continued community — based supervision and he should be re-sentenced to a period of incarceration. See VOP, attached hereto.” The Defendant was arraigned on this Violation of Probation on December 6th, 2018 and the Legal Aid Society was assigned again, and the Defendant was remanded to jail. On January 8, 2019 the Defendant with counsel conferenced the Violation of Probation for Defendant’s continued use of marijuana and failure to attend treatment. The Court then ordered a drug and mental health evaluation. On January 10, 2019, in response to the Court’s request for the evaluations, the Probation Department responded with a “Court Update Letter” as follows: Having been convicted of VTL 1192 04 Operating Motor Vehicle Impaired by Drugs — 1st Offense the above-named subject was sentenced to three (3) years’ probation on 2/22/18. As the Court is aware, the subject’s adjustment to Probation Supervision has been poor. A VOP was filed on 11/13/18 due to the subject’s continued abuse of marihuana and failure to comply with Drug and Alcohol Treatment. Currently, the subject is not engaged in Mental Health or Drug and Alcohol Treatment. The subject provided a urine sample on 1/10/19 which tested positive for marihuana. The subject admitted to smoking since the VOP has been filed. The subject reports that he is in the process of meeting with a doctor and hopes to get a prescription for medical marihuana in the near future. It should be noted, that the subject continues to express his desire to serve a period of incarceration rather than continue being supervised by the Probation Department. Therefore, it is this department’s belief that the defendant is no longer a suitable candidate for Probation Supervision. See Probation Update, attached hereto. On February 1, 2019, the Defendant admitted the violation of probation supervision and sentencing was adjourned to February 22, 2019, exactly one year after having been initially sentenced to probation supervision. The defendant was sentenced without a PSR to a revocation of probation and one year in Sullivan County Jail with credit for time served2. Defendant’s Counsel was heard at sentencing but made no objection to the sentencing of this Defendant and made no request for an updated pre-sentence report. The Defendant was remanded to serve his sentence with credit for time served. Opinion: This matter now comes before the Court by way of the Defense Counsel’s3 Motion filed on August 13th, 2019 and was fully submitted on September 12th, 2019 to Vacate the defendant’s sentence, and re-sentence the Defendant to one hundred eighty (180) days of incarceration. Defendant’s Counsel argues that pursuant to CPL §390.20(2) a court may not impose a sentence of imprisonment for a period in excess of one hundred eighty (180) days unless it has ordered a pre-sentence investigation of the Defendant. The Defense argues, that at the time of this Defendant’s VOP sentencing there was not an updated pre-sentence investigation report as required by CPL §390.20 (2)4. Defense Counsel further argues that the Defendant had mental health issues which caused his addiction to marijuana and that the Defendant has employment available and is a hard worker, and most compelling the Defendant is the primary financial supporter for, and role model for his three small children who are suffering during his absence.5 The request for resentencing would, if granted, would release the Defendant 21 days before his maximum release date. Counsel argued that although the Court had the letter from Probation dated January 10th, 2018, the Court failed to request an updated pre-sentence investigation report as required by CPL §390.20(2) for the Defendant’s Sentencing Violation of Probation on February 22nd, 2019. Defense counsel acknowledges that CPL §390.20(4)(iv) allows a defendant to waive a pre-sentence report on the record at sentencing, but, the Defendant did not waive on the record an updated Pre-Sentence Report. In response, the People state that the Defendant’s argument is simply without merit. The Prosecution argues that the Court did not need a Pre-Sentence Report pursuant to Article 390 of the CPL since the Court had the benefit of the January 10th, 2019 letter from the Probation Department; several conferences with the Probation Department and the Defendant before the Court regarding this defendant’s conditions and violations. Thus, the Prosecutor argues the Court had full knowledge of the of the Defendant’s pertinent status, condition and problems prior to the violation of probation sentencing. Regarding the Defendant’s failure to waive the Pre-Sentence Report argument, the Prosecution argues that the Defendant did de facto waive as: “Neither defendant nor trial counsel for defendant, Tim Havas, Esq., who is among the most experienced criminal defense attorneys currently practicing in Sullivan County, requested that the Court order another or different updated Pre-Sentence Investigation Report prior to imposing sentence upon defendant’s violation of probation; nor did defendant or counsel register any objection to the imposition of sentence without an updated probation report. Indeed, it is the normal custom and practice of the People and representatives of the Sullivan Legal Aid Panel to waive updated probation reports in light of detailed Petitions for Violation of Probation Supervision which adequately inform the Court of the circumstances giving rise to a particular defendant’s re-sentencing.” Over the course of approximately two (2) years on probation, this Defendant appeared with counsel before this Court on five occasions. During that time, this Court had the benefit of the Defendant’s pre-sentence investigation report for his initial sentencing on January 10th, 2018. Subsequently the Court requested an update from the Probation Department on the Defendant’s first violation of probation which was provided on January 10th, 2019 prior to sentencing on February 22nd, 2019. Additionally, the Probation Department and the Defendant with counsel appeared before this Court for conferences regarding the defendant’s conditions and adjustments to Probation. The Court also had the Probation Department’s letter of January 10th, 2019, all of which it is argued contributed to this Court having full knowledge of the of the Defendant’s status, conditions, mental health and substance abuse issues prior to sentencing. The Court of Appeals held in People v. Kuey, 83 NY2d 278, 282 [1994] that whether to obtain an updated report at resentencing is a matter resting in the sound discretion of the sentencing Judge” and, that there is “no legal obligation” that a judge order an updated Pre-Sentence Investigation Report before imposing re-sentence. Similarly, in People v. Somers, 280 AD2d 925 [2001 4th Dept] the Appellate Court in affirming the judgment and sentencing of a defendant for his probation violation, relied upon N.Y. Crim. Proc. Law §390.20(1) to determine that the information before the sentencing court was the functional equivalent of an updated presentence report. The Court indicated that it was relevant that the court was fully familiar with any changes in defendant’s status, conduct, or condition since the original report was prepared. In People v. Somers, 280 AD2d 925 [4th Dept 2001], lv denied 96 NY2d 806 [2001], the Court stated: “documents that inform the court of all relevant changes in defendant’s status may substitute as the ‘functional equivalent’ of a presentence report,” including a Probation Department’s violation petition. “[W]here, as here, the court is fully familiar with any changes in defendant’s status, conduct or condition since the original report was prepared, an updated report is not required.” Somers, id., 280 AD2d at 925.” In the case at bar, the Defendant waived his right to a pre-sentence investigation report by failing to request an updated report or make an appropriate objection during or immediately after sentencing. This Defendant and competent defense counsel had ample time on multiple Court appearances prior to sentencing and during sentencing to request an updated pre-sentencing report. The Court during the Violation of Probation proceedings and conferences had the benefit of the Defendant’s probation officer’s input regarding the Defendant’s status and conditions, and also the probation update letter of January 10th, 2019 prior to sentencing. In People v. Kaulback, 46 A.D.3d [2007 Appellate Division, Third Dept], the Defendant argued that the trial court erred in failing to order an updated presentence investigation report (PSR) and that her sentence was harsh and excessive. The appellate court disagreed. The Appellate Division held that because the Defendant failed to request an updated report or make an appropriate objection on the record, she had failed to preserve the issue for review. The Appellate Division further held that the defendant and counsel both made statements to the trial court before sentencing, thus affording them the opportunity to apprise the Court of any pertinent status or conduct. Thus, the Appellate Division held that the defendant had ample opportunity to supply any pertinent information to the sentencing court, and the court was aware of defendant’s comportment to Probation subsequent to the sentencing. In so deciding, People v. Kaulback, id, the Court held: “the trial court did not err in determining not to update the PSR. Finally, given defendant’s inability to abide by the terms of her probation, the sentence imposed was not harsh or excessive and there were no extraordinary circumstances that warranted a reduction of the sentence in the interest of justice.” In the case at bar, the Court having had ample information regarding the Defendant’s status, condition, and conduct on probation before it imposed sentence. The Defense had ample time to offer any pertinent information regarding the Defendant’s status or request an updated Pre-Sentence Report. The Defense failed to object to the absence of a pre-sentence report at sentencing. Thus, Defendant’s application for resentencing is denied. This shall constitute the Decision and Order of this Court. Dated: September 17th, 2019 Monticello, New York
