

People v Herbert (2016 NY Slip Op 00601)





People v Herbert


2016 NY Slip Op 00601


Decided on January 28, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 28, 2016

Tom, J.P., Sweeny, Gische, Kapnick, JJ.


59 2402/03

[*1]The People of the State of New York, Respondent,
vEugene Herbert, Defendant-Appellant.


Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya-McGinn of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Rena K. Uviller, J.), rendered April 25, 2012, resentencing defendant to a term of nine years, with five years' postrelease supervision, unanimously affirmed.
The court properly resentenced defendant in his absence. The record supports the court's conclusion that, under the unusual circumstances presented, defendant forfeited his right to be present and sentencing in absentia was permissible (see People v Halls, 85 AD3d 632 [1st Dept 2011], lv denied 17 NY3d 869 [2011]). The Correction Law § 601-d proceeding to add postrelease supervision was adjourned 13 times over a 17-month period, because the correctional authorities repeatedly indicated that defendant's behavior and mental condition were incompatible with transporting him to New York County for resentencing. In order to prevent defendant from being released without any supervision, the court finally imposed the resentence in defendant's absence, three days before his prison term expired.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2016
CLERK


