People v. Yannicelli
| Decision Date | 07 April 1975 |
| Citation | 47 A.D.2d 911,366 N.Y.S.2d 230 |
| Parties | The PEOPLE, etc., Respondent, v. Michael YANNICELLI and Anthony Gariola, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Irving Anolik, New York City, for appellants.
Carl A. Vergari, Dist. Atty., White Plains (B. Anthony Morosco, White Plains, of counsel), for respondent.
Before HOPKINS, Acting P.J., and LATHAM, COHALAN, BRENNAN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendants, as limited by their brief, from two resentences (one as to each defendant) of the County Court, Westchester County, both imposed March 25, 1974, upon their conviction of possession of gambling records in the first degree (one count as to each defendant) and promoting gambling in the first degree (one count as to each defendant), upon their pleas of guilty, the resentences being as to defendant Yannicelli two concurrent definite terms of five months in the Westchester County Penitentiary; and as to defendant Gariola two concurrent definite terms of 75 days in the same penitentiary. Fines previously imposed upon both defendants were remitted.
Resentence of defendant Yannicelli modified, as a matter of law, by reducing his sentence to two concurrent definite terms of three months.
Resentence of defendant Gariola modified, as a matter of law, by reducing his sentence to two concurrent definite terms of two months. As so modified, resentences affirmed.
The sentences originally imposed upon defendants, and thereafter completely executed, called for a fine and a short definite prison term. On appeal by the People, we reversed and remanded the cases to the County Court for the purpose of resentencing, holding that the sentences 'were invalid as a matter of law, because of failure to comply with section 80.00 of the Penal Law, since the sentencing court made no findings as to the amount of the gain of these defendants from the crime' (People v. Yannicelli, 40 A.D.2d 564, 565, 334 N.Y.S.2d 550, 552, affd., 33 N.Y.2d 621, 347 N.Y.S.2d 580, 301 N.E.2d 549). On resentencing, the County Court remitted the fines, but imposed longer definite prison terms, with credit for time served.
On this record, the constitutional guarantee against double jeopardy prevents imposition of an increased term of imprisonment (Sullens v. United States, 5 Cir., 409 F.2d 545; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656; United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 75 L.Ed. 354; Ex parte Lange, 85 U.S. 163, 21 L.Ed. 872...
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