People v. Miller

• Court: New York Court of Appeals
• Writing for the Court: MEYER; WACHTLER
• Citation: 482 N.E.2d 892,493 N.Y.S.2d 96,65 N.Y.2d 502
• Parties: , 482 N.E.2d 892 The PEOPLE of the State of New York, Respondent, v. Michael MILLER, Appellant.
• Decision Date: 11 July 1985

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493 N.Y.S.2d 96 65 N.Y.2d 502, 482 N.E.2d 892 The PEOPLE of the State of New York, Respondent,
v.
Michael MILLER, Appellant. Court of Appeals of New York. July 11, 1985.
Certiorari Denied Nov. 4, 1985.
See 106 S.Ct. 317.

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Peter Branti, Jr., Public Defender, New City (Clare McCue, New York City, and William K. Nelson, New City, of counsel), for appellant.

Kenneth Gribetz, Dist. Atty., New City (John S. Edwards, New City, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

That a heavier sentence is imposed following trial than was imposed following defendant's earlier conviction, thereafter reversed, of first degree rape based on his guilty plea, involves no violation of defendant's right to due process or to confront the witnesses against him, it having been stated during both sentencing proceedings that the lesser sentence following the guilty plea was imposed to spare the victim the necessity of recounting the experience at a public trial. Nor did the reversal of the guilty plea conviction entitle defendant to relitigate the issue of suggestiveness decided against him prior to that conviction, and the hearing judge's finding of independent source, affirmed by the Appellate Division, was based upon sufficient evidence. The order of the Appellate Division should, therefore, be affirmed.

I

As the rape victim, a 21-year-old nursing student, turned into her driveway at 12:15 a.m., her car was hit in the rear by a vehicle driven by defendant. During the exchange of information that ensued, defendant abducted the victim at knifepoint and drove off with her in the car. For the next four hours defendant and his victim were together as he drove around at high speeds, ultimately found a seldom used road and, with the knife at her neck and head, forced her to remove her clothing and submit to intercourse with him, followed by further driving around until defendant finally left the vehicle.

About a month thereafter the District Attorney sought, but was denied, an order requiring defendant to appear in a lineup, in connection with which defendant was represented by the Public Defender. Indictment, about a year later, was followed by a combined Huntley-Wade hearing at which defendant argued that his statement to the police, having been made in the absence of counsel, should be suppressed and that the victim should not be permitted to make an in-court identification because the showing to her on five separate occasions of a photo array tainted the identification process.

The hearing judge refused to suppress defendant's statement and ruled that the array was not suggestive and that the victim, having been with defendant for over four hours, clearly had an independent source and, therefore, would be permitted to make an in-court identification. Defendant then pleaded guilty to rape in the first degree, which carries a maximum sentence of 8 1/3 to 25 years. As part of the plea negotiations, sentence to an indeterminate term of 4 to 12 years was recommended by the prosecutor and agreed to, subject to the probation report, by the judge, both of whom indicated that the 4 to 12 year sentence was agreed to rather than require the victim to "recount the horror [she] went through."

On appeal, the Appellate Division reversed and vacated the plea for failure to

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suppress the statement made by defendant in the absence of the Public Defender (76 A.D.2d 576, 430 N.Y.S.2d 865), but held defendant's identification contentions to be without merit (id., at p. 586, 430 N.Y.S.2d 865), and on appeal to this court we affirm (54 N.Y.2d 616, 442 N.Y.S.2d 491, 425 N.E.2d 879). After a lineup was held the victim, whose responses to the prior photo array showings had been that the photograph of defendant looked like her assailant but that she could not be sure until she saw him, identified defendant positively. Defendant's attorney then moved to suppress the lineup identification and prohibit in-court identification, once again advancing the argument that the repeated showing of the photo array to the victim tainted the lineup identification as well. The hearing judge limited the hearing to whether the lineup was suggestive and refused to consider the taint issues considered by the first hearing judge. He ruled that both lineup and in-court identifications were permissible.

Convicted after a jury trial of rape in the first degree, defendant was sentenced to an indeterminate term of 7 to 21 years. In imposing sentence the Trial Judge, a different judge than had imposed the earlier sentence after the plea, noted that the prior 4 to 12 year sentence had been agreed to "only because the [victim] would not have to testify at" a public trial and that the consideration failed when defendant, after his successful appeal, went to trial, compelling the victim to testify. On appeal to the Appellate Division, that court, one Justice dissenting, held that the imposition after trial of a heavier sentence involved no due process violation and that the other issues raised by defendant, so far as preserved, lacked merit.

The matter is before us by leave of a Judge of this court. Of the issues raised by defendant, only those relating to the sentence imposed, the second Wade hearing and the in-court identification warrant discussion, and on those issues we conclude that under the circumstances of this case the heavier sentence imposed after trial was constitutonally permissible, limitation of the scope of the second Wade hearing was proper and in-court identification by the victim was properly allowed.

II

Defendant's arguments respecting sentence are predicated upon the due process clauses of the 14th Amendment to the United States Constitution and the State Constitution, article I, § 6 and the right to be confronted with the witnesses against him contained in the latter section of the State Constitution, in Civil Rights Law § 12 and in the 6th Amendment to the United States Constitution.

A

The due process argument is predicated largely on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, which held that vindictiveness could play no part in resentencing, and particularly upon so much of it as required that a judge imposing a more severe sentence upon a defendant after a new trial, affirmatively state a reason for doing so "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding" (395 U.S., at p. 726, 89 S.Ct. at p. 2081). In a series of cases ¹ decided after Pearce, the Supreme Court has sought to separate the situations which will give rise to a presumption of vindictiveness that must be rebutted by the prosecutor or sentencing authority from those which do not and, therefore, require the defendant affirmatively to establish actual vindictiveness. It has also sought to define the factors that a judge or other sentencing authority may consider, without violating

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the defendant's constitutional rights, as justifying imposition of an increased sentence following retrial.

What triggers the presumption is the opportunity which the particular situati presents for vindictiveness and the reasonable likelihood that the prosecutor or...