People v. Justice
| Decision Date | 11 March 1994 |
| Citation | 202 A.D.2d 981,609 N.Y.S.2d 734 |
| Parties | PEOPLE of the State of New York, Respondent, v. John D. JUSTICE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Linda S. Reynolds by John Nuchereno, Buffalo, for appellant.
Kevin M. Dillon by J. Michael Marion, Buffalo, for respondent.
Before DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ.
The facts of this case appear in a prior decision of this Court (People v. Justice, 173 A.D.2d 144, 579 N.Y.S.2d 502), wherein we reversed defendant's conviction of two counts of murder on the ground that the court failed properly to respond to a jury request for supplemental instruction on the insanity defense. On retrial, defendant was convicted, inter alia, of manslaughter in the first degree and manslaughter in the second degree arising out of separate homicides. Defendant was sentenced to consecutive terms of 8 1/3 to 25 years for first degree manslaughter and five to 15 years for second degree manslaughter, an aggregate term of 13 1/3 to 40 years.
Defendant's sentence, in particular the imposition of consecutive terms, was not illegal. Penal Law § 70.25(2) authorizes consecutive sentencing where the offenses were not "committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other." Defendant's acts of homicide, committed hours apart and at different locations, warranted consecutive terms. Defendant's contention that concurrent sentences were required because both crimes were committed with the same mental state lacks merit (see, People v. Chandler, 106 A.D.2d 677, 484 N.Y.S.2d 142).
Defendant additionally contends that, under the doctrine of North Carolina v. Pearce, 395 U.S. 711, 724-725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 and People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423, it was illegal for the court to impose consecutive sentences after retrial where defendant had received concurrent terms after his initial trial. Defendant was sentenced to concurrent terms of 25 years to life after his first trial and received an aggregate term of 13 1/3 to 40 years following his retrial. Thus, defendant did not receive a lengthier sentence following retrial, and the presumption of vindictiveness does not apply.
There is no basis for modifying defendant's sentence in the interest of justice. The sentencing court did not abuse its discretion in...
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...to forty years. The Fourth Department unanimously affirmed the judgment of conviction, and leave to appeal was denied. People v. Justice, 202 A.D.2d 981 (4th Dep't 1994); lv. denied, 83 N.Y.2d 968 (1994). B. Petitioner's Parole Violation Petitioner was released to parole supervision from th......
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... ... In any event, there was no prejudice. The jury acquitted defendant of the theft and criminal possession of that knife ... Defendant did not receive an increased sentence following retrial, and thus there is no presumption of vindictiveness (see, People v. Justice, 202 A.D.2d 981, 982, 609 N.Y.S.2d 734, lv. denied 83 N.Y.2d 968, 616 N.Y.S.2d 21, 639 N.E.2d 761; United States v. Campbell, 5th Cir., 106 F.3d 64, 69; Knapp v. Leonardo, 2d Cir., 46 F.3d 170, 180, cert. denied 515 U.S. 1136, 115 S.Ct. 2566, 132 L.Ed.2d 818). The appropriate comparison is not ... ...
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