Supreme Court, New York County, July 30, 2021

Cyrus R. Vance, Jr., District Attorney (Victoria Meyer of counsel), for plaintiff.

Johnnie Woluewich for defendant.

This opinion addresses an issue of first impression: given the termination of the Governor's executive order authority for virtual criminal appearances, may parties mutually consent to conduct a criminal proceeding virtually (in this case an agreed-upon felony probation sentence after a plea) which is not authorized by article 182 of the Criminal Procedure Law? In this case, this court concluded the answer was yes and imposed such a felony sentence virtually.

Statement of Facts

The defendant entered virtual guilty pleas under the indictment and separate Criminal Court docket referenced here on June 1, 2021. He pleaded guilty under the indictment to the class D felony of grand larceny in the third degree under Penal Law § 155.35 (1) with the promise of five years' probation. He pleaded guilty under the Criminal Court docket to driving while ability impaired by alcohol (DWAI) under Vehicle and Traffic Law § 1192 (1), a violation, with a promised sentence of a $500 fine, participation in the Impaired Driver and Victim Impact Program and a 90-day license suspension.

On July 27, 2021, the parties appeared virtually for a sentence on these pleas. The defendant is at liberty. As discussed in more detail infra, the court informed the parties that the legal landscape governing virtual criminal proceedings had recently changed. The court explained that the Governor's executive orders authorizing remote criminal proceedings had been rescinded on June 25. The court further outlined how article 182 of the Criminal Procedure Law authorized virtual criminal proceedings with the consent [*2]of a defendant if certain requirements were met. The court pointed out, however, that this statute did not authorize felony sentences to be imposed virtually. (CPL 182.30 [1].) The court said that the authority to impose a virtual sentence upon the defendant's conviction for grand larceny in the third degree therefore depended on the doctrine that criminal defendants are entitled to waive a large range of rights, many much more significant than the right to be present for an agreed-upon sentence in-person rather than virtually. The court said that based on its research, it believed such a waiver was permissible with the consent of both the prosecutor and the defendant.{**72 Misc 3d at 1135}

The court also made clear, however, that this was an issue on which there was not yet controlling authority. It noted that if the sentence it imposed virtually was appealed from and deemed unlawful the sentence might have to be vacated. The court said that if either party objected to imposing the sentence virtually, the case would be adjourned and calendared for an in-person sentence pronouncement. Both parties then indicated on the record that they consented to have the sentences imposed virtually and the court imposed the sentences it had promised the defendant. Throughout the proceeding, all of the participants could be clearly seen and heard. The appearance lasted less than 10 minutes.

Conclusions of Law^[FN*]

Rescission of Executive Order Authority for Virtual Criminal Proceedings

On June 24, 2021, Governor Cuomo issued Executive Order (A. Cuomo) No. 210 (9 NYCRR 8.210), which rescinded previous COVID-19 emergency orders impacting the justice system and other subjects, effective the following day. The order was premised on New York's improved COVID-19 metrics and the Governor's view that the emergency authorities he rescinded were no longer necessary.

The Criminal Procedure Law presumes that litigants must generally be physically present in court, particularly for important proceedings like pleas, sentences, evidentiary hearings and trials. During the COVID-19 emergency, executive orders suspended those requirements. Under Executive Order (A. Cuomo) No. 202.76 (9 NYCRR 8.202.76), issued on November 19, 2020, and periodically extended since then, criminal proceedings were explicitly authorized to be conducted virtually with the consent of the parties, "including but not limited to bench trials, evidentiary hearings, CPL 440 hearings, and/or probation or parole violation hearings." Since these executive order authorities were rescinded on June 25, they [*3]provided no authority to impose the virtual sentences in this case.

CPL Article 182

Article 182 of the Criminal Procedure Law authorizes digital appearances under certain conditions with the consent of a defendant.{**72 Misc 3d at 1136} But the statute does not apply to evidentiary hearings and trials and explicitly prohibits the taking of felony pleas or the imposition of felony sentences. It also prohibits misdemeanor pleas or sentences which result in additional incarceration. These prohibitions apply even if a defendant consents to a virtual appearance. The statute applies in 27 of New York's 62 counties and is applicable in the five boroughs of New York City. In one case, the First Department held the statute could be used to allow a defendant to appear remotely for a trial based on the trial court's inherent authority, even though the statute did not literally permit it. But that holding was based only on the "valid and exceptional medical reasons" the defendant was facing in that particular case. (People v Krieg, 139 AD3d 625, 627 [1st Dept 2016], lv denied 28 NY3d 932 [2016].) In the 35 counties in which article 182 does not apply, the statute provides no authority to conduct remote proceedings of any kind, even routine calendar calls.

Article 182 authorized this court to impose the sentence for the defendant's DWAI conviction. It did not provide authority for the court to impose the sentence for the defendant's felony grand larceny conviction through a virtual appearance.

The Waiver Doctrine

Despite the absence of authority to impose felony sentences under the Governor's executive orders or CPL article 182, this court believed it was entitled to impose the felony sentence in this case under the waiver doctrine.

Defendants have been held entitled to waive a large range of rights. Most are much more significant than the right the defendant waived here: the right to be present in-person rather than virtually for a brief proceeding in which the court pronounced an agreed-upon probation sentence. Thus, defendants can waive the right to a trial (by pleading guilty), the right to a jury trial, the right to appeal, the right to be prosecuted by an indictment, the right to be present when prospective jurors are questioned, the privilege against self-incrimination and the right to be present during a trial at all. (See People v Spotford, 85 NY2d 593 [1995] [defendant's waiver of right to be present during trial proceedings]; People v Betts, 70 NY2d 289 [1987] [outlining the scope of a testifying defendant's waiver of the privilege against self-incrimination]; People v Steininger, 66 Misc 3d 693, 701 [Sup Ct, NY County 2019] [decision of this court surveying case law on multiple additional waiver issues].){**72 Misc 3d at 1137}

Some of these waiver allowances are provided by the New York State Constitution and statutes. But courts have also held that important rights can be waived in the absence [*4]of specific statutory allowances. As the New York Court of Appeals explained in People v Seaberg (74 NY2d 1, 7 [1989]): "[W]hen there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys." (Citation omitted.)

There are certain rights defendants may not waive however, such as the right to challenge an illegal sentence or a defendant's competency to stand trial. (Seaberg, 74 NY2d at 9.) These prohibitions obviously apply to rights far different, however, than the right to be present for a brief court appearance in-person rather than remotely. The rights defendants have been held not entitled to waive implicate compelling policy concerns: the requirement that defendants not enter into involuntary pleas or are imprisoned for periods not authorized by law. No such policy imperatives arose here.

In People v Rossborough (27 NY3d 485 [2016]) the Court of Appeals held that a defendant can expressly waive the right to be present for a felony sentence, notwithstanding the statute requiring in-person appearances for such proceedings (CPL 380.40). The Court explained:

"[T]hat fundamental right may be waived just as many other fundamental rights may be similarly waived. . . . A defendant's right to be present at sentencing does not fall within the class of those fundamental rights that may not be waived, particularly where [as in the instant case] a defendant is receiving the sentence to which he knowingly and voluntarily agreed in a plea bargain." (27 NY3d at 489.)

Holding that the defendant in the instant case was not entitled to be sentenced through an electronic appearance would mean that while Mr. Reyes was free to absent himself from his sentence entirely, he was barred from fully participating in it virtually.

The Argument That the Instant Felony Sentence was Prohibited by CPL Article 182

The strongest argument against allowing a virtual sentence in a case like this, in this court's view, comes from the authority the legislature has provided for virtual criminal proceedings: CPL article 182. That statute allows virtual criminal appearances{**72 Misc 3d at 1138} (in some counties) for some proceedings but not others. Thus, the argument can be made that the legislature considered whether to grant the authority to provide for virtual felony criminal sentences upon a defendant's consent and determined not to provide it, foreclosing the court's actions here.

This is a reasonable argument. It is one this court does not agree with for three reasons. First, article 182 is not a statute which requires the mutual consent of the parties. It requires only a defendant's consent. (CPL 182.20 [1].) The court is entitled to impose authorized sentences under article 182 (those for certain misdemeanors) without the consent of the People. Thus, article 182 does not govern the authority which was used here, an authority based on mutual consent.

It might be argued that this is a facile distinction, given the limited routes the [*5]People have to contest any unlawful action by a court. Put another way, it is a defendant's consent which matters in practical terms and under case law with respect to waivers—not the People's. The distinction between allowing a virtual felony sentence with a defendant's consent and allowing a virtual felony sentence only upon a defendant's and prosecutor's consent is arguably a distinction without a practical difference.

During the COVID-19 emergency, however, it was mutual consent which governed virtual criminal proceeding executive order authority. It was mutual consent which made such proceedings routine and uncontroversial for over a year. In practical terms under the current unsettled legal landscape, it is the consent of the People and the court which is critical, not the defendant. Defendants take no risk by consenting to a virtual plea or sentence and, in this court's experience, often agree to them. If the defendant is satisfied with the result, no appeal will ensue and the disposition will stand. If the defendant is aggrieved, however, he or she can always elect to attempt to challenge the court's virtual authority later. It is the court and the prosecutor who take the risk in such situations. It is their acquiescence that matters.

This court also does not believe article 182 prohibits the actions it took here because there is no reason to believe the legislature intended that statute to foreclose mutually agreed-upon virtual proceedings using the technologies and confronting the health risks we face today. Article 182 is an archaic statute. It was enacted in 1993 and while the legislature has{**72 Misc 3d at 1139} periodically renewed its scheduled expirations and added additional counties to its coverage, it has not modified its substantive requirements. Some of the statute's provisions are obviously outdated. Article 182, for example, requires the Commission on Cable Television to "inspect, test, and examine" digital systems to ensure they comply with the law's requirements. (CPL 182.40 [2].) The Commission on Cable Television went out of existence on January 1, 1996. (See L 1995, ch 83, § 121.)

Finally, on a closely related issue, the Court of Appeals in Rossborough held that a defendant's voluntary waiver of the right to be present for a felony sentence was valid even though by statute "[t]he defendant must be personally present at the time sentence is pronounced." (CPL 380.40 [1].) The Court noted that CPL 380.40 (2) provided an exemption to the physical sentence presence requirement, but only for misdemeanors if certain additional requisites were met. That is, just as in this case, the Court confronted a statute which defined which defendants were entitled to waive their presence at sentencing (certain misdemeanants, just as under article 182) and which were not (felony offenders, again, just as under article 182). Recognizing that the statute "[o]n its face" did not allow a waiver for felony sentences, the Court nevertheless found it was the defendant's choice that controlled. (27 NY3d at 488.) As the Court explained, the statute existed "for the protection of the defendant, and if a defendant knowingly, voluntarily and intelligently informs the court that he desires to waive this fundamental right, he is entitled to do so." (27 NY3d at 489.) In this court's view, that same principle applies here.[*6]

Arrayed against these potential legal impediments is what substantively matters: the benefits of continued virtual appearances. In this court's view, not only is there no public policy which would preclude voluntary virtual appearances like those which occurred here. There are compelling arguments supporting them.

The Benefits of Virtual Proceedings

The benefits of virtual appearances in proceedings like this are obvious and expanded exponentially to criminal cases throughout the state would have a significant positive impact on the justice system. In this case, three people did not have to travel to court: the defendant, the defense attorney and the prosecutor. That obviously saved time. It saved money. Virtual proceedings also eliminate the need for defense attorneys to{**72 Misc 3d at 1140} shuttle between courtrooms, sometimes in different counties. Such appearances directly save public funds because they reduce the amount of time private attorneys assigned to represent indigent defendants, who are paid by the government by the hour, must spend traveling to and waiting in courthouses.

Conducting this proceeding virtually benefitted the defendant. Defendants who must travel to court, often for routine appearances like calendar calls at which nothing substantive may occur, may miss work or face health or child care challenges. When such appearances are scheduled repeatedly, defendants may face employment problems or even risk losing their jobs. The failure to physically appear in a courtroom may result in incarceration.

This virtual proceeding reduced health risks. COVID-19 infections are again increasing. Confronting COVID-19 effectively, as the court system has done successfully throughout the pandemic, requires the adjustment of court procedures in real time to address rapidly changing challenges using all available options, including virtual technology. This proceeding eliminated all of the risks which would have occurred from multiple people traveling to and then convening with other people in a courtroom.

The appearance also promoted efficiency because it was conducted sooner than it would have had the matter been adjourned and calendared for a later in-person appearance. While the court system is now transitioning to more in-person appearances, various constraints can still make scheduling virtual appearances easier and quicker than calendaring in-person proceedings. In the aggregate, virtual appearances also save court resources which can be used for cases which require personal appearances, like jury trials.

There is also much which can be lost during virtual proceedings. But this case illustrates why parties often find it in their mutual interests to consent to them. Imposing a criminal sentence is never ministerial. But this proceeding was routine. It was devoid [*7]of controversy or argument. It consumed several minutes. The defendant was promised a sentence and received it. A few administrative issues were quickly resolved without dispute. Everyone was clearly seen and heard. Everyone was satisfied with the outcome.

Rights which cannot be waived "implicate society's interest in the integrity of the criminal process" or a "larger societal interest" which cannot be properly bargained away. (People v {**72 Misc 3d at 1141}Callahan, 80 NY2d 273, 280 [1992] [internal quotation marks and citation omitted].) Nothing like that occurred here. Whatever valid arguments may have existed for limiting virtual proceedings with a defendant's consent when article 182 was enacted 28 years ago bear little relationship to the vastly superior technologies and unprecedented health challenges we face today.

In Seaberg, the Court also approved an appeal waiver for the named defendant in part because there was "little doubt that the bargain was reasonable, that defendant knew and understood the terms of it and . . . willingly accepted them." (74 NY2d at 12.) That is even more evident here.

For all of those reasons, this court concluded that it was empowered to impose a virtual felony sentence in this case.