Resentencing ordered in murder case over judge error

A state appeals court has ordered a convicted murderer to be resentenced because the judge failed to have a presentence report prepared.

Defendant Gil Shearer pleaded guilty to second-degree murder in March 2004 before Westchester County Court Judge Sam D. Walker, who sentenced Shearer.

In July 2019, without a hearing, Judge David S. Zuckerman denied a motion from Shearer to set aside the sentence “on the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.”

In a decision released Wednesday, the Appellate Division of state Supreme Court, Second Department, reversed that decision and vacated the sentence and sent the case back to Westchester County Court for resentencing.

In March 2003, Shearer pleaded guilty to attempted third-degree criminal possession of a controlled substance after cocaine was found in his apartment during the execution of a search warrant in October 2002.

When Shearer pleaded guilty to that charge, the judge ordered a presentence report, which was completed before June 5, 2003.

On March 22, 2003, Shearer fatally shot a man and was charged with second-degree murder and other offenses.

On Jan. 26, 2004, Shearer pleaded guilty to the murder charge.

On Jan. 29, 2004, in the drug possession case, Shearer was sentenced to 7½ to 15 years in state prison.

On March 10, 2004, in the murder case, Shearer was sentenced to 15 years to life, which was to run concurrently with the sentence imposed in the drug case.

No presentence report was prepared in the murder case. Instead, the judge relied on the presentence report that had been prepared for the drug possession case.

In February 2019, Shearer filed a motion to set aside his sentence on the murder conviction on the ground that it was illegally imposed because the judge failed to order a presentence report as required under state law.

In July 2019, the motion was denied without a hearing.

Under state law, when a person is convicted of a felony, the court must order a pre-sentence investigation and the judge “may not pronounce sentence until it has received a written report of such investigation.”

“This statutory language is mandatory, and a sentencing court’s failure to obtain a presentence report renders the sentence imposed invalid as a matter of law,” the Second Department wrote.

The case was sent back to County Court for a new presentence report and resentencing.

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