Sunday, February 8, 2009

One May Not Waive the Presentence Report Prior to the Impositon of a Sentence of Imprisonment

In People v Shapard (2009 NY Slip Op 00903 [4th Dept 2/6/09]) the Court held that a defendant may not waive his right to a presentence report prior to the imposition of a sentence of imprisonment.

We agree with defendant that his waiver of the presentence report should not have been given effect pursuant to CPL 390.20 (4) (a). Such a waiver is not authorized where, as here, "an indeterminate or determinate sentence of imprisonment is to be imposed" (id.). Defendant pleaded guilty to a class D felony and agreed that he was properly classified as a persistent violent felony offender. Supreme Court therefore was required to impose a term of imprisonment upon that conviction (Penal Law § 70.08 [3] [c]; § 120.05 [7]), and thus was also required to order a presentence report prior to imposing the bargained-for sentence (see generally People v Selikoff, 35 NY2d 227, 238, cert denied 419 US 1122; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 390.20). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing in compliance with CPL 390.20 (1).

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