By Michele Evans / NYweeklyRecord.com / Date: 10/28/2026
Category: Criminal Courts / Sentencing / Right to Counsel / Court Administration
NEW YORK CITY, NY – A Manhattan defendant will be sentenced again after an appellate court found that a judge wrongly barred his lawyer from attending a presentence interview.
The Appellate Division, First Department, ruled Tuesday that Supreme Court improvidently exercised its discretion when it denied Damon Lee’s request to have counsel present for the interview that informed his sentencing.
Lee was convicted after a jury trial of multiple sex offenses, including first-degree rape and sexually motivated burglary. The court imposed an aggregate prison term of 13 years in June 2023.
The appellate panel did not overturn those convictions. It found the evidence legally sufficient, upheld the jury’s assessment of credibility and specifically declined to disturb the finding that the victim did not consent.
The court also upheld the prosecutor’s reading of the victim’s written statement at sentencing. State law protects a victim’s right to be heard, the panel said, and does not bar a prosecutor or another person from reading the statement on the victim’s behalf.
The sentencing process was different. Before the presentence interview, Lee filed a substantial request asking that his attorney be allowed to attend. The interview could affect the information placed before the judge, and Lee’s filing also raised consequences under the Sex Offender Registration Act after incarceration.
New York law does not expressly say whether counsel must be admitted to every presentence interview. The First Department avoided a broad constitutional ruling and instead held that the trial court retained discretion. On these facts, excluding counsel was an improper use of that discretion.
The remedy is limited but significant. The 13-year sentence has been vacated, and the case returns for a new presentence interview at which defense counsel may appear, followed by resentencing. The guilty verdicts remain in place.
Presentence reports can shape a judge’s view of a defendant’s history, risks and prospects. They can also carry consequences beyond the prison term. Allowing counsel to attend in this case gives the defense a chance to protect the accuracy and fairness of information gathered before punishment is imposed again.
The ruling does not create an automatic statewide right to counsel at every probation interview. It signals that judges must make a reasoned decision when counsel is requested, especially when sentencing remains open and collateral consequences are at stake.
The next proceeding will not retry the victim’s allegations or the jury’s verdict. It will determine Lee’s sentence after a corrected process. The new judge must weigh the lawful sentencing factors on a record developed after counsel is permitted to be present.
Sources
People v. Lee, Appellate Division, First Department, 2026 NY Slip Op 06259
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