People v. Best
| Decision Date | 09 February 1987 |
| Citation | 127 A.D.2d 671,511 N.Y.S.2d 897 |
| Parties | The PEOPLE, etc., Respondent, v. Hillary A. BEST, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hillary A. Best, pro se.
John J. Santucci, Dist. Atty., Kew Gardens (Beverly Kalman, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, BRACKEN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Queens County (Browne, J.), imposed September 26, 1985, upon his conviction of rape in the first degree, after a jury verdict, the resentence being an undeterminate term of 8 1/3 to 25 years imprisonment.
ORDERED that the resentence is affirmed.
The defendant was convicted in 1977 of rape in the first degree and resisting arrest, upon a jury verdict, and he was sentenced on the rape conviction to an indeterminate term of imprisonment of 5 to 15 years. However, this court reversed the judgment on the basis of certain trial errors and ordered a new trial (People v. Best, 73 A.D.2d 651, 422 N.Y.S.2d 478). The case was retried before a different judge, and the defendant was once more convicted of the same two crimes, upon a jury verdict, but he was sentenced to an indeterminate term of 8 1/3 to 25 years on the rape conviction. On appeal, this court left the conviction intact but vacated that sentence and remitted for resentencing on the ground that the sentencing court had failed to place on the record its reasons for imposing a more severe sentence after retrial than that originally imposed (People v. Best, 112 A.D.2d 942, 492 N.Y.S.2d 463). On remittitur, the defendant was once again sentenced to an indeterminate term of 8 1/3 to 25 years, and he now argues on appeal that the imposition of a harsher sentence constituted a violation of his rights under the due process clause of the 14th Amendment to the United States Constitution. We disagree.
Where a defendant has successfully appealed from his original judgment of conviction, the due process clause prohibits the imposition, after retrial, of a greater sentence which is actually motivated by vindictiveness (see, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; People v. Miller, 65 N.Y.2d 502, 493 N.Y.S.2d 96, 482 N.E.2d 892, cert. denied, 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300). Thus, where a judge imposes a more severe sentence after reconviction following a successful appeal, there is a presumption of vindictiveness which may be overcome only by objective information affirmatively appearing in the record which provides a legitimate and reasoned justification for the greater sentence (see, Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424; North Carolina v. Pearce, supra, 395...
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...imposed by different Judges, the presumption is inapplicable and the defendant has to prove actual vindictiveness (see, People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897, [lv. denied 70 N.Y.2d 642, 518 N.Y.S.2d 1034, 512 N.E.2d 560]; Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.......
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