People v Bolson

Court Discusses Whether a Family Member can be classified as a victim within the meaning of Section 390.30 (3) (b) of the CPL

The defendant was convicted of driving while intoxicated but acquitted of manslaughter and vehicular assault. The defendant’s Queens County Criminal Attorney during the sentencing hearing made an objection regarding the inclusion of a victim impact statement in the presentence report by the family of the deceased. It was argued by the defendant’s counsel that report was not necessary because the defendant was acquitted on the charges involving the deceased. It was further contended that the letter was improperly communicated to the court by the deceased family and should not be considered by the court in determining his sentence.

Section 390.30 (3)(b) of the Criminal Procedure Law states that a presentence report must contain a victim impact statement which gives the victim an opportunity to outline their version of the offense. The term victim is not defined in the CPL but it should be construed in its most obvious and natural sense. Victim according to the Merriam-Webster’s Collegiate Dictionary means one that is acted on adversely by force or agent. Therefore, the deceased’s family would be considered a victim as they were acted on adversely by the actions of the defendant and as such they had a right to write the letter to the Probation Department to state their version of the accident, how it had impacted their lives and the appropriate punishment. The Probation Department and the court had the discretion to determine what weight should be attached to the comments when considering sentencing. The CPL (390.30(1)) directs the Probation Department the gather information regarding the circumstances of the offense, the defendant’s criminal history and social history. Additionally, the Department may gather any other information that is relevant to sentencing and information that the court orders.

A trial judge in sentencing a convicted person faces a challenge and difficult task. In Williams v New York, 337 US 241 [1949] it was stated that the trial judge can exercise his discretion in sentencing by using sources and types of evidence available to him to assist him in deciding the appropriate sentence. According to United States v Grayson, 438 US 41 [1978] an inquiry into the defendant’s life was essential to arrive at a fair and proper sentence. The court in considering the fair and proper sentence may look at offences which the defendant was not convicted for as stated in Williams v New York. In the instant case, the court was not precluded from hearing evidence regarding the charges he was acquitted of and other evidence whether positive or negative that can assist in arriving at an appropriate sentence.

The defendant’s Queens County DWI Lawyer asserted that driving while intoxicated in this case is a victimless crime and the defendant was not responsible for the death of the deceased. Even though the court was not of the belief that the defendant was responsible for the death of the deceased and the injuries suffered beyond a reasonable doubt due to his intoxication, he could not escape some of the liability. The information supplied by the deceased’s family to determine an appropriate sentence gave the defendant a procedural right to refute any negative evidence which will affect him adversely and to present positive information he wanted the court to consider. As a result, the court considered the victim impact statement and the defendant’s response to the statement to give it the appropriate weight it deemed fit.

The court further held that the CPL 380.50 (2) (a) (2); (b) provided for a limited right for the victim of felonies to address the court at the time of sentencing. Thus, the court was not precludes from considering a letter expressing the views of the victim’s family, since the court had the discretion to consider such a communication, the family had the right to communicate its views to the Department, and the prosecutor had an implied right to bring the letter to the attention of the court as enounced in the People v Rivers (262 AD2d 108, 108-109 [1st Dept 1999]). In Rivers the court accepted a letter from the family of a slain police officer even though the defendant was acquitted of the charge involving the police officer’s death.

There was a failure by the prosecution to follow the appropriate procedure to bring to the court. The CPL (Title L) sets out the procedure in communicating the letter to the court regarding sentencing. The purpose of the section was to allow both sides to communicate before the day of sentencing. Therefore, the defendant, however, was not prejudiced in respect of his rights. The defendant had a full and fair opportunity to be heard in opposition. As such, the letter was still included in the presentence report.

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