11 September 2012

AD3: exact same sentence on remand, after top count dismissed, totally not vindictive

People v Grice, 2012 NY Slip Op 05848 [3d Dept 2012] [available here]

A court is not allowed to punish a defendant for exercising his or her rights. If a defendant decides to shut up and not talk to the police, the prosecutor is not allowed to argue that his silence is evidence of guilt. If a defendant rejects a plea deal and goes to trial, the court is not supposed to ratchet up the defendant's sentence more than the facts warrant after trial.

And if a defendant exercises his right to appeal, and wins on some issues and loses on others, the trial court is not allowed to treat the defendant more harshly on remand.

In People v Grice, the defendant was convicted after trial of first-degree robbery (#1) and sentenced by the trial judge (as a second felony offender) to 15 years in prison. The appellate court tossed the first-degree robbery conviction, reducing it to second-degree robbery (#2) and "remitted the matter to County Court for resentencing." (Grice at *1.)

The County Court promptly gave the defendant 15 years, the exact same sentence previously imposed when the defendant stood convicted of a much more serious crime. The defendant appealed again, this time arguing "that the resentence was motivated by vindictiveness for exercising his right to appeal." (Id. at *1.) In a one-sentence holding, the Third Department upheld the resentence, finding "no indication in the record that County Court acted vindictively in imposing the resentence, as opposed to relying on defendant's extensive criminal history." (Id.)

This begs the question: short of tricking the trial judge into saying, on the record, something along the lines of, "You try my patience with your endless legal wrangling, good sir . . . with all the vindictiveness I can muster, I sentence you to 15 years," how is a defendant supposed to make a record of vindictiveness? If every fact at resentencing is the same except the degree of crime for which the defendant stands convicted--same underlying facts of the crime, same criminal history, same attitude of remorse, etc.--then isn't the fact that the trial imposes the exact same sentence for a much less serious crime evidence of vindictiveness per se?

The Third Department says no. No it is not.


#1: The worst kind of robbery, typically involving relieving a person of his or her property at a gunpoint (or knifepoint, or whatever).
#2: The second-worst kind of robbery, usually not involving the use of a gun or other dangerous weapon.

No comments:

Post a Comment