Opinion
2019-644 W CR
01-18-2024
The PEOPLE of the State of New York, Respondent, v. Christopher JOHNSON, Appellant.
ORDERED that the judgment of conviction is affirmed.
In four simplified traffic informations, defendant was charged with, respectively, driving while intoxicated (per se) ( Vehicle and Traffic Law § 1192 [2] ), driving while intoxicated (common law) ( Vehicle and Traffic Law § 1192 [3] ), refusal to submit to a breath test ( Vehicle and Traffic Law § 1194 [1] [b] ), and driving a motor vehicle without displaying illuminated numbers on the rear license plate ( Vehicle and Traffic Law § 375 [2] [a] [4] ). Defendant pleaded guilty to common-law driving while intoxicated in satisfaction of all four accusatory instruments and three additional accusatory instruments related to another arrest. On April 2, 2018, defendant was sentenced, without counsel present, to 90 days' imprisonment. On April 12, 2018, the court resentenced defendant, nunc pro tunc, to the same sentence, with counsel present. On appeal, defendant contends that his conviction must be vacated because the court denied him his constitutional right to counsel when it sentenced him without counsel present.
"The constitutional right to counsel is fundamental to our system of justice" ( People v Arroyo , 98 NY2d 101, 103 [2002] ; see People v Maraj , 44 AD3d 1090, 1092 [2007] ). "The defendant may not be deprived of his constitutional right to be effectively represented by counsel at the crucial stage of sentencing" ( People v Gonzalez , 43 AD2d 914, 915 [1974] ). "[I]t has been held to be reversible error where a court ... proceeds with ... sentencing in the absence of the defendant's retained counsel" ( People v Arroyave , 49 NY2d 264, 270 [1980] ). Although it was error for the court to have imposed sentence without defense counsel present on April 2, 2018, the remedy for such error is to remit the matter for resentencing with counsel present (see People v Dunn , 122 AD2d 952 [1986] ), but the court already resentenced defendant with counsel present on April 12, 2018. In any event, defendant has served his sentence.
Accordingly, the judgment of conviction is affirmed.
McCORMACK, J.P., GARGUILO and DRISCOLL, JJ., concur.