Can evidence of prior criminal charges that did not result in convictions be considered at a sentencing hearing for a current criminal conviction?

The case presents a serious and difficult question. The question relates to the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant. Within limits fixed by statutes,

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New York judges are given a broad discretion to decide the type and extent of punishment for convicted defendants. Here, for example, the judge's discretion was to sentence to life imprisonment or death. To aid a judge in exercising this discretion intelligently the New York procedural policy encourages him to consider information about the convicted person's past life, health, habits, conduct, and mental and moral propensities. The sentencing judge may consider such information even though obtained outside the courtroom from persons whom a defendant has not been permitted to confront or cross-examine. It is the consideration of information obtained by a sentencing judge in this manner that is the basis for appellant's broad constitutional challenge to the New York statutory policy.

[...]

Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations.⁴ But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind the extent of punishment to be imposed within limits fixed by law.⁵ Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders.⁶ A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information 'as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant * * *.'⁷

In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evi-

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dence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.⁸ And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.

Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. People v. Johnson, 252 N.Y. 387, 392, 169 N.E. 619. The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions—even for offenses today deemed

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trivial.⁹ Today's philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders.¹⁰ Indeterminate sentences, the ultimate termination of which are sometimes decided by nonjudicial agencies have to a large extent taken the place of the old rigidly fixed punishments.¹¹ The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy.¹² Execution of the United States parole system rests on the discretion of an administrative parole board. 36 Stat. 819, 18 U.S.C. §§ 714, 716, (now §§ 4202—4204.) Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.¹³

Modern changes in the treatment of offenders make it more necessary now than a century ago for observance

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of the distinctions in the evidential procedure in the trial and sentencing processes. For indeterminate sentences and probation have resulted in an increase in the discretionary powers exercised in fixing punishments. In general, these modern changes have not resulted in making the lot of offenders harder. On the contrary a strong motivating force for the changes has been the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship. This belief to a large a large extent has been justified.

Under the practice of individualizing punishments, investigation techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information.¹⁴ To deprive sentenc-

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ing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesse subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant's life.¹⁵ The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.

The considerations we have set out admonish us against treating the due-process clause as a uniform command that courts throughout the Nation abandon their age-old

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practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence. New York criminal statutes set wide limits for maximum and minimum sentences.¹⁶ Under New York statutes a state judge cannot escape his grave responsibility of fixing sentence. In determining whether a defendant shall receive a one-year minimum or a twenty-year maximum sentence, we do not think the Federal Constitution restricts the view of the sentencing judge to the information received in open court. The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts—state and federal—from making progressive efforts to improve the administration of criminal justice.

It is urged, however, that we should draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed. We cannot accept the contention. Leaving a sentencing judge free to avail himself of out-of-court information in making such a fateful choice of sentences does secure to him a broad discretionary power, one susceptible of abuse. But in considering whether a rigid constitutional barrier should be created, it must be remembered that there is possibility of abuse wherever a judge must choose between life imprisonment and death. And it is con-

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ceded that no federal constitutional objection would have been possible if the judge here had sentenced appellant to death because appellant's trial manner impressed the judge that appellant was a bad risk for society, or if the judge had sentenced him to death giving no reason at all. We cannot say that the due-process clause renders a sentence void merely because a judge gets additional out-of-court information to assist him in the exercise of this awesome power of imposing the death sentence.

This Court has long recognized that sentencing judges "exercise a wide discretion" in the types of evidence they may consider when imposing sentence and that "[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 246–247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that "[n]o limitation shall be placed on the information" a sentencing court may consider "concerning the [defendant's] background, character, and con-duct," and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including "the history and characteristics of the defendant," § 3553(a)(1).

Traditionally, "[s]entencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior." Nichols v. United States, 511 U.S. ----, ----, 114 S.Ct. 1921, 1928, 128 L.Ed.2d 745 (1994). We explained in Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082-1083, 93 L.Ed. 1337 (1949), that "both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." That history, combined with a recognition of the need for individualized sentencing, led us to conclude that the Due Process Clause did not require "that courts throughout the Nation abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence." Id., at 250-251, 69 S.Ct., at 1084-1085. Thus, "[a]s a general proposition, a sentencing judge 'may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.' " Nichols, 511 U.S., at ----, 114 S.Ct., at 1927-1928 (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972)). See also Wisconsin v. Mitchell, 508 U.S. ----, ----, 113 S.Ct. 2194, ----, 124 L.Ed.2d 436 (1993).

We begin our analysis with 18 U.S.C. § 3661, which codifies the longstanding principle that sentencing courts have broad discretion to consider various kinds of information. The statute states:

''No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.''

We reiterated this principle in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), in which a defendant convicted of murder and sentenced to death challenged the sentencing court's reliance on information that the defendant had been involved in 30 burglaries of which he had not been convicted. We contrasted the different limitations on presentation of evidence at trial and at sentencing: ''Highly relevant-if not essential-to [the judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.'' Id., at 247, 69 S.Ct., at 1083 (footnote omitted); see Nichols, supra, at 747, 114 S.Ct., at 1928 (noting that sentencing courts have traditionally and constitutionally ''considered a defendant's past criminal behavior, even if no conviction resulted from that behavior'') (citing Williams, supra ); BMW of North America, Inc. v. Gore, 517 U.S. ----, ---- n. 19, 116 S.Ct. 1589, 1597 n. 19, 134 L.Ed.2d 809 (1996) (''A sentencing judge may even consider past criminal behavior which did not result in a conviction'') (citing Williams, supra ). Neither the broad language of § 3661 nor our holding in Williams suggests any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing. Indeed, under the pre-Guidelines sentencing regime, it was ''well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.'' United States v. Donelson, 695 F.2d 583, 590 (C.A.D.C.1982) (Scalia, J.).

The Guidelines did not alter this aspect of the sentencing court's discretion. '' '[V]ery roughly speaking, [relevant conduct] corresponds to those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines' enactment.' '' Witte, supra, at ----, 115 S.Ct., at 2207 (quoting United States v. Wright, 873 F.2d 437, 441 (C.A.1 1989) (Breyer, J.)). Section 1B1.4 of the Guidelines reflects the policy set forth in 18 U.S.C. § 3661:

''In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661.''

Although the dissent concedes that a district court may properly consider ''evidence adduced in a trial that resulted in an acquittal'' when choosing a particular sentence within a guideline range, it argues that the court must close its eyes to acquitted conduct at earlier stages of the sentencing process because the ''broadly inclusive language of § 3661'' is incorporated only into § 1B1.4 of the Guidelines. This argument ignores § 1B1.3 which, as we have noted, directs sentencing courts to consider all other related conduct, whether or not it resulted in a conviction. The dissent also contends that because Congress instructed the Sentencing Commission, in 28 U.S.C. § 994(l ), to ensure that the Guidelines provide incremental punishment for a defendant who is convicted of multiple offenses, it could not have meant for the Guidelines to increase a sentence based on offenses of which a defendant has been acquitted. Post, at __. The statute is not, however, ''cast in restrictive or exclusive terms.'' United States v. Ebbole, 917 F.2d 1495, 1501 (C.A.7 1990). Far from limiting a sentencing court's power to consider uncharged or acquitted conduct, § 994(l ) simply ensures that, at a minimum, the Guidelines provide additional penalties when defendants are convicted of multiple offenses. Ibid. If we accepted the dissent's logic, § 944(l ) would prohibit a district court from considering acquitted conduct for any sentencing purposes, whether for setting the guidelines range or for choosing a sentence within that range-a novel proposition that the dissent itself does not defend. Post, at __. In short, we are convinced that a sentencing court may consider conduct of which a defendant has been acquitted.

Contrary to the defendant's contention, "[i]t is well established that in reaching a sentencing determination, the court may consider not only prior offenses for which the defendant was convicted, but even offenses for which he had not been convicted" (People v Khan, 146 AD2d 806, 807 [1989]; see People v Gonzalez, 242 AD2d 306, 306-307 [1997]; People v Kaplan, 199 AD2d 82, 83 [1993]; see also Williams v New York, 337 US 241 [1949]).

Contrary to the defendant's contentions, the court properly considered the defendant's prior arrest in sentencing him. It was within the court's discretion to consider the defendant's prior criminal history, including crimes for which he has never been tried or convicted (see, Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; People v. Cunningham, 153 A.D.2d 700, 544 N.Y.S.2d 871; People v. Shapiro, 141 A.D.2d 577, 529 N.Y.S.2d 186), as long as the information regarding such crimes was reliable and accurate (see, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356; People v. Villanueva, 144 A.D.2d 285, 534 N.Y.S.2d 166).

As this Court noted in People v. Day, 73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325, sentencing courts "are wisely allocated wide latitude as they are recognized to be in a superior position to dispense proportionate and fair punishment." Under its discretionary sentencing power, a court may properly consider evidence of prior crimes (see, e.g., Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337). However, a court's discretion in sentencing is not without limits. Generally, as a matter of due process, an offender may not be sentenced on the basis of " 'materially untrue' assumptions or 'misinformation' " (United States v. Pugliese, (2nd Cir.) 805 F.2d 1117, 1123, quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690). Rather, "[t]o comply with due process * * * the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate" (People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356).

Here, the prosecutor's assertion that defendant was involved in the shooting incident was based on pure speculation and, thus, the court's consideration of the incident in imposing defendant's sentence was improper.