People v. Fuller
| Decision Date | 02 November 1987 |
| Citation | 520 N.Y.S.2d 449,134 A.D.2d 278 |
| Parties | The PEOPLE, etc., Respondent, v. Rohan FULLER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Howard Friedman, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Aaron F. Fishbein, of counsel), for respondent.
Before MOLLEN, P.J., and BRACKEN, BROWN and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant, as limited by his motion, from a resentence of the Supreme Court, Kings County (Egitto, J.), imposed July 8, 1986, the resentence being an indeterminate term of imprisonment of 7 to 21 years, upon a jury verdict convicting him of attempted murder in the second degree.
ORDERED that the resentence is affirmed.
The defendant was originally sentenced upon his conviction of attempted murder in the second degree to an indeterminate term of imprisonment of 10 to 20 years as an armed felon. On appeal, this court vacated the sentence upon the ground that attempted murder in the second degree is not a class B armed felony offense (see, CPL 1.20[41]; Penal Law § 110.05[4]; § 125.25[1]; People v. Lawrence, 97 A.D.2d 718, 469 N.Y.S.2d 1, affd. 64 N.Y.2d 200, 485 N.Y.S.2d 233, 474 N.E.2d 593), and remitted the matter for resentencing (People v. Fuller, 119 A.D.2d 692, 501 N.Y.S.2d 116). Upon resentencing, the court imposed an indeterminate term of imprisonment of 7 to 21 years. We affirm.
Contrary to defendant's contention, in imposing a resentence following the vacatur of the original illegal sentence, the court was not barred from imposing a sentence having a maximum term of greater than 20 years. Unlike those cases which hold that following a successful appeal and retrial, a court, absent a reasoned and legitimate justification, may not impose a greater sentence than was originally imposed (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; People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897, lv. denied, 70 N.Y.2d 642, --- N.Y.S.2d ----, 512 N.E.2d 560), at bar, there was never a prior legal sentence imposed. Once the original sentence was vacated on the ground that it was illegal, the court on resentencing was not bound by either the minimum or maximum limits of the original sentence, which had become a nullity (see, People v. Harrington, 21 N.Y.2d 61, 64, 286...
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