People v. Van Pelt

• Decision Date: 05 June 1990
• Citation: 556 N.Y.S.2d 984,556 N.E.2d 423,76 N.Y.2d 156
• Parties: , 556 N.E.2d 423, 59 USLW 2002 The PEOPLE of the State of New York, Respondent, v. Edward VAN PELT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 984

556 N.Y.S.2d 984

76 N.Y.2d 156, 556 N.E.2d 423, 59 USLW 2002

The PEOPLE of the State of New York, Respondent, v. Edward VAN PELT, Appellant.

Court of Appeals of New York.

June 5, 1990.

[76 N.Y.2d 157] Frank A. Brady and Philip L. Weinstein, New York City, for appellant.

William L. Murphy, Dist. Atty. (Yolanda L. Rudich and Karen F. McGee, of counsel), for respondent.

Lawrence S. Goldman, Frederick J. Jacobs, Roanne Mann and Lawrence B. Pedowitz, New York City, for Criminal Law Committee, Ass'n of the Bar of the City of New York, amicus curiae.

[76 N.Y.2d 158] Jonathan E. Gradess, Poestenkill, and Yolanda Villa, Rochester, for the New York State Defenders Ass'n, amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant's first trial and conviction resulted in a reversal by the Appellate Division for jury instructional error. The second jury trial resulted again in a conviction and in a higher sentence imposed by a different Justice. The Appellate Division affirmed, 149 A.D.2d 636, 540 N.Y.S.2d 297, and a Judge of this court granted leave to appeal. The issue is whether an enhanced sentence, under these circumstances offends State constitutional due process protections, where the recitation made by the sentencing court on the record does not justify the tougher sentence referable to cognizable reasons occurring subsequent to the first sentencing, sufficient to overcome the presumption of institutional "vindictiveness". Because the procedure employed does not satisfy State due process requirements, the order of the Appellate Division should be reversed and the case should be remitted for resentencing.

Defendant and his brother were indicted in 1981 for the gunpoint robbery of an employee of a liquor store in Staten Island. The brother pleaded guilty and defendant was convicted, after a jury trial, earning a concurrent sentence as a second felony offender of 5 to 10 years and 4 to 8 years, respectively, for the two robbery counts. Subsequently, the Appellate Division reversed and remanded for a new trial because of the trial court's failure to instruct the jury correctly concerning the prosecution's burden of disproving defendant's alibi beyond a reasonable doubt (see, People v. Van Pelt, 119 A.D.2d 707, 500 N.Y.S.2d 824).

At the retrial before a different Justice, defendant was again convicted on a jury's verdict of first and second degree robbery. At the sentencing--now challenged on this appeal--the Trial Justice sentenced defendant to concurrent terms of 7 1/2 to 15 years and 6 to 12 years, respectively, with the following relevant comments:

"I was unfavorably impressed with the fact that it appeared to me that the defendant's constant contact with his family concerning this particular case is understandable from a human point of view but I really got the impression that the defendant was, in effect, bullying his sister and his brother-in-law to come in and do the right thing vis-a-vis establishing an alibi for him when I didn't believe the alibi.

"There is no reason for me to disbelieve the complaining witness. He had nothing to gain one way or another by this case. To make him come in twice and relive the trauma of looking down the barrel of a gun and not knowing whether or not it had a hair trigger or not or whether this defendant had a good aim or a bad aim or whether or not it was even loaded. That was all factored in my consideration of a sentence in this case." (Appellant's apdx., at A41 [emphasis added].)

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the Supreme Court formulated a rule designed to neutralize the actuality or perception of judicial vindictiveness in sentencings after a new trial ordered as a result of a defendant's successful appeal from an earlier conviction. It framed the issue around "the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial" (395 U.S. supra, at 715-716, 89 S.Ct. at 2075). The Supreme Court held that a more severe sentence after retrial did not violate due process where the subsequent sentencer acted on "events subsequent to the first trial" (395 U.S., supra, at 723, 89 S.Ct. at 2079-2080), provided that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be 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., supra, at 726, 89 S.Ct. at 2081 [emphasis added].) The holding has been interpreted as creating a rebuttable presumptive invalidity where the same Judge does the subsequent sentencing.

In 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), we applied the Pearce rule in a somewhat different procedural setting. Defendant was tried, convicted and resentenced following vacatur of the original 4-to-12-year sentence based on a negotiated plea conviction. Defendant had pleaded guilty to rape, first degree, after an unfavorable suppression ruling. The Appellate Division reversed the suppression court's ruling (76 A.D.2d 576, 430 N.Y.S.2d 865), and we affirmed on the People's appeal (54 N.Y.2d 616, 442 N.Y.S.2d 491, 425 N.E.2d 879). Upon remittal for trial, defendant was convicted of rape, first degree, and a sentence of 7 to 21 years was imposed by a Judge different from the first cycle. The subsequent Judge distinguished the case from Pearce on the ground that defendant Miller's original conviction was based upon a guilty plea, not upon a trial verdict. Claiming the original sentence was therefore a bargain in exchange for relieving the victim from having to testify at public trial, the Trial Judge did not feel bound to the original sentence. The Appellate Division agreed with the trial court (103 A.D.2d 808, 477 N.Y.S.2d 688) and, on defendant's appeal, we affirmed (65 N.Y.2d 502, 493 N.Y.S.2d 96, 482 N.E.2d 892, supra ). Our analysis started with the Pearce presumption, even though two different sentencing Judges acted and even though the chances of vindictive motivation (in the institutional, not personal, sense) for the higher sentence was "reduced" in such circumstances. We held that the presumption was overcome, however, because the greater sentence resulted from defendant's own choice to forego the quid pro quo of the original plea-bargained sentence. In essence, we held that defendant forfeited the benefit of the deal reflected in the initial sentence by electing to go to trial. "Having accepted the exercise of discretion to lower the original sentence in return for a plea in order to protect the victim, the defendant should not be heard to complain that a higher sentence is imposed after conviction following a retrial at which, by requiring that the victim testify, he has removed from consideration the element of discretion involved." (People v. Miller, 65 N.Y.2d, at 509, 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, supra.)

The next phase of this issue was encountered by the Supreme Court in the context of whether to apply its Pearce presumption to a second sentence imposed by a different sentencer (Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104). There, a jury imposed the first sentence and the Trial Judge then set aside the conviction itself. On retrial and reconviction, the court imposed a more severe sentence than the jury had originally fixed. The Supreme Court held that because two different sentencers--a jury and later a Trial Judge--assessed the varying sentences, it could not be said that defendant had received a sentence "increase" (id.,...