People v. Simone

• Decision Date: 20 October 1980
• Citation: 78 A.D.2d 685,432 N.Y.S.2d 248
• Parties: The PEOPLE, etc., Respondent, v. Salvatore SIMONE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 248

432 N.Y.S.2d 248

78 A.D.2d 685

The PEOPLE, etc., Respondent, v. Salvatore SIMONE, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 20, 1980.

Richard S. Scanlan, White Plains, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Richard E. Weill and Gerald D. Reilly, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendant from (1) a judgment of the Supreme Court, Westchester County, rendered May 17, 1978, convicting him of two counts of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing concurrent sentences of imprisonment of three years to life; and (2) (by permission) an order of the same court, dated September 25, 1979, denying his motion pursuant to CPL 440.10 (subd. 1) to vacate the said judgment.

Judgment modified, on the law, by reducing the sentences to two concurrent indeterminate terms of imprisonment of one year to life. As so modified, judgment affirmed.

Order reversed, on the law, and case remitted to Criminal Term for a hearing and further proceedings consistent herewith.

Defendant was previously convicted of two counts of criminal sale of a controlled substance in the third degree and was sentenced to concurrent terms of imprisonment of one year to life. That judgment was reversed (People v. Simone, 59 A.D.2d 918, 399 N.Y.S.2d 154). Following the retrial, defendant was convicted of the same charges and was sentenced to concurrent terms of three years to life. In the absence of objective information appearing affirmatively on the record concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing which would justify the imposition of a harsher sentence, it was error for the court to have imposed a greater sentence following the retrial (see North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656; People v. Yannicelli, 47 A.D.2d 911, 366 N.Y.S.2d 230, mod. 40 N.Y.2d 598, 389 N.Y.S.2d 290, 357 N.E.2d 947).

Additionally, under the circumstances here presented, a hearing should be held on defendant's application to vacate the judgment.

We have examined defendant's other contentions and find them to be without merit (see People v. Sapia, 41 N.Y.2d 160, 391 N.Y.S.2d 93, 359 N.E.2d 688, cert. den. 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80; People v. Crimmins, 36 N.Y.2d...