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Fiandach & Fiandach (Rochester NY)

585.244.8910

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Victim's Rights At Sentencing Reviewed

February 14, 2008

Enacted in 1992, the Legislature, in CPL ' 380.50(a)(2)(b), statutorily permits the victim of a crime to make a statement at the time of sentencing. Of clear significance, when the charge is one of homicide, in the operation of a motor vehicle, subdivision two defines a victim as a family member. Recognizing the potential drain in resources that such a procedure could have if applied generally, the provision applies only to those instances when the defendant is being sentenced upon a felony.

Procedurally, the act requires the victim to notify the court, at least ten days prior to the date of sentencing, of his or her desire to speak. No less than seven days prior to the date of sentencing, the court shall notify the defendant of the victim's intent to make a statement. Failure to give timely notice mandates the granting of an adjournment, if the defendant so desires.


At the time of sentencing, any statement by the victim must proceed that given by the defendant or counsel, thus affording the defendant the right to rebut allegations made in the victim's statement. If the terms of sentencing have been reached by agreement, all rebuttal by the defendant is limited to oral refutation at that time. If, however, the court chooses not to impose the agreed upon sentence or the statement of the victim contains allegations concerning the event that were not, in the words of the statute, fully explored during the proceedings or materially vary from or contradict the evidence at trial, and the court determines that such allegations are relevant, several alternatives present themselves. The defendant can request and shall be afforded a reasonable adjournment to rebut the allegations whereby the defendant can present written questions for the court to put to the victim. If the court declines to present such written questions, it shall state its reasons therefore in the record.

This provision recognizes the due process rights of a defendant to be confronted by the victim's allegations, to be heard at the time of sentencing, and limits the term victim in terms of sentencing input. It therefore places in grave doubt a practice employed by some special interest groups of having individuals with an interest, real or imagined, write letters to the sentencing judge about the pending proceeding. In view of this tightly defined procedure, a judge receiving such correspondence would due well to return the same unread.

Since its inception, not much has been written on the mechanics this section's implementation. Our experience is that it is normally carried out in an ad hoc fashion with liberal agreement by each of the parties.

In People v. Bolson, C AD2d C, 713 N.Y.S.2d 664, it seems that the defendant was charged with Driving While Intoxicated as well as a homicide type offense. We say seems because incredibly the decision does not elaborate on this crucial point. We further gather, from the opinion, that at trial the defendant was acquitted of the homicide offense and found guilty of a misdemeanor ' 1192 violation.


At the time of sentencing, a pre-sentence report was prepared. This pre-sentence report included a victim's impact report filled out by the widow and son of the individual killed in a fatal automobile accident. Initially, the defendant argued that inclusion of a victim's impact report, from these individuals, was inappropriate since it did not fall within the purview of the statute. On this score, the defendant was technically right. As part of the pre-sentence investigation, the report is required to contain a victim's impact statement, unless it appears that such information would be of no relevance to the recommendation or court disposition. The victim's impact statement shall include an analysis of the victim's version of the offense, the extent of injury or economic loss and the actual out‑of‑pocket loss to the victim as well as the views of the victim relating to disposition. This statement must also include the amount of restitution and reparation sought by the victim after the victim has been informed of the right to seek restitution and reparation (CPL ' 390.30(3)[b]). Of some note, since CPL ' 390.30 does not define the term victim, the threshold issue was whether the victims's widow was a victim within the meaning of the statute. In the absence of a statutory definition, the court (Rotker, J.) observed that rules of statutory construction require that the language be >construed according to its natural and most obvious sense,' (NY Statutes, section 94). Accordingly, it turned to Merriam-Webster's Collegiate Dictionary which defined a victim as one that is acted on, usually adversely, by a force or agent. Finding that the defendant, Mr. Hurtado's wife and son were <acted upon' by the event[] . . . and, therefore, have a statutory right to communicate to the Probation Department their version of the events of that night, its impact on their family and their views regarding the appropriate deposition.

In the alternative, even if one were to find that CPL ' 390.30(3)[b] did not provide a specific forum for inclusion of the widow's and son's comments, the court opined that CPL ' 390.30(1) mandates that the Probation Department gather information with respect to the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, and the defendant's social history, etc.. Since this investigation may include any other matter that the Department deems relevant to the question of sentence and must include any matter the court directs to be included . . ., the court found inclusion of the letter to be entirely proper.


Nor was the court's analysis altered by the fact that the defendant had been acquitted of the homicide offense. As phrased in the decision, [t]he Court was unable to find beyond a reasonable doubt that the defendant's intoxication alone was the cause of the accident which resulted in the death of Mr. Hurtado . . . As a result of his acquittal, the defendant, by Order to Show Cause, claimed that it was inappropriate to permit Mrs. Hurtado to express her views in the pre-sentence report. More specifically, the defendant argued that he bore no responsibility for the tragedy. Incredibly, in the supporting documentation on the Order to show cause, defense counsel set forth that driving while intoxicated in this case is a victimless crime (emphasis supplied herein). Inclusion by the defense of the italicized phrase was patently ludicrous. While we are of the belief that in most cases driving while intoxicated is a victimless crime, in this case it definitely was not. Describing this statement as not at all well taken by the court, the court found the general rule that the trial judge may exercise broad discretion in the sources and types of evidence used to assist him in deciding an appropriate sentence, (Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 [1949]) governed and that this enabled the court to consider many factors including >even offenses' for which [the defendant] has not been convicted (Williams v. New York, supra). Accordingly, it determined that it may consider input from the decedent's family.


The second major issue in Bolson concerned a letter that Mrs. Hurtado wished to have considered by the court prior to passing sentence. On this score, the defense took an interesting position. Apparently, the defendant was convicted solely of Driving While Intoxicated as a misdemeanor. CPL ' 380.50(a)(2)(b) applies only to those instances when the defendant is being sentenced upon a felony. The issue which therefore arose was whether this provision precluded Mrs. Hurtado from submitting a letter. Holding that it did not, the court observed that in People v. Rivers, 262 A.D.2d 108, 691 N.Y.S.2d 488 (1st Dept., 1999), the First Department explicitly held that CPL ' 380.50 should be read as affirmatively >granting victims the right to make statements at sentencing, not as limiting the court's discretion to permit additional persons to speak.' Thus, although the offense of which he was convicted would not permit either the victim or a survivor (subdivision two defines a victim as a family member when the charge is one of homicide) to speak pursuant to the statutorily created right, Rivers nevertheless permits the sentencing court to hear the victim or family members if the sentencing court is of the opinion that they have relevant information to offer and if allowing them the right to speak would not be otherwise inappropriate or disruptive (see, People v. Julia, 40 A.D.2d 560, 333 N.Y.S.2d 978 [2nd Dept., 1972]). Accordingly, the court determined that a letter from the widow could be considered.

Before leaving this topic there is one other point we would like to make. Much of our practice involves individuals charged with homicide offenses. In virtually every case in which sentencing is an issue, we see letters from a well-organized machinery of writers who have no association whatsoever with the victim aside from possessing a political agenda which condemns alcohol related operating offenses. In one Upstate case we handled, an extremely competent judge was besieged with letters from as far away as Brooklyn, on a motion! This practice must stop. It has no place in our justice system. Neither CPL ' 380.50 nor CPL ' 390.30 permit this type of extra-judicial attempt to shape the outcome.


Fortunately, on each and every occasion, in which we have seen this reprehensible practice, the court immediately notified counsel for all parties and advised that it had not read, let alone considered, the correspondence. However, admirable, this type of treatment, by the court, is simply not sufficient. When a popularly elected judge has to make a critical decision and receives dozens of letters from groups such as Mothers Against Drunk Driving, he or she need not read the same to know of their contents. Like a tally sheet of pro and con e-mails concerning legislation, the actual content within the letters is immaterial. The mere mailing of such letters can do irreparable damage to the rights of the defendant. In the interest of justice, the Legislature should consider legislation making or advocating the issuance of such correspondence a crime akin to jury tampering.



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