People v. Coon
| Decision Date | 01 November 2007 |
| Docket Number | 100877. |
| Citation | 45 A.D.3d 897,845 N.Y.S.2d 839,2007 NY Slip Op 08134 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TIMOTHY COON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered December 21, 2006, which resentenced defendant following his conviction of the crime of assault in the second degree.
As is set forth more fully in our prior decision (34 AD3d 869 [2006]), defendant was convicted after a nonjury trial of depraved indifference assault for cutting his sister twice in the neck and throat with a butcher knife. Because the proof was insufficient to establish depraved indifference assault, we modified his conviction on appeal by reducing it to assault in the second degree and remitted the matter to County Court for resentencing and modification of the order of protection that had been imposed (id. at 870-871). Thereafter, County Court resentenced defendant to a term of imprisonment of seven years to be followed by three years of postrelease supervision, but failed to modify the order of protection. Defendant now appeals.
Defendant contends that his sentence is harsh and excessive and that it is the result of vindictiveness on the part of County Court in response to defendant's successful appeal. We disagree. Inasmuch as "the sentence imposed was not enhanced but diminished" (People v Thomas, 283 AD2d 724, 725 [2001]) and a review of the record reveals "`no reasonable likelihood of vindictiveness'" (People v Seavey, 9 AD3d 742, 743 [2004], lv denied 4 NY3d 748 [2004], quoting People v Young, 94 NY2d 171, 179 [1999]), defendant's claim that it was vindictive is unpersuasive. The fact that, following our modification of defendant's conviction from assault in the first degree to assault in the second degree, County Court's sentence went from one in the middle of the permitted range for first degree assault —15 years—to the maximum sentence under his second degree assault conviction—seven years—does not demonstrate vindictiveness. Defendant's sentence is undeniably reduced and, as the underlying facts of defendant's criminal conduct remained the same, the sentence imposed by County Court permissibly fell at a different point in the sentencing range in order to reflect the appropriate sentence under the modified conviction in light of defendant's history and conduct (see People v...
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...824 N.E.2d 61, 62 [2004], quoting People v. Young, 94 N.Y.2d 171, 179, 701 N.Y.S.2d 309, 723 N.E.2d 58 [1999]; accord People v. Coon, 45 A.D.3d 897, 898, 845 N.Y.S.2d 839 [2007], lv. denied 10 N.Y.3d 763, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ). Read in context, the court's reference to ......
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