Imposition of Harsher Sentence After Appeal Was Vindictive

The Fourth Department determined the resentencing of defendant after appeal to a more severe sentence than was first imposed was vindictive and imposed the original sentence. The court wrote:

“In order to ensure that defendants are not being penalized for exercising their right to appeal, ‘a presumption of [institutional] vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences . . . than were imposed after their initial convictions’ ” … .  “The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed” … .  In order to justify an increased sentence, a court must set forth its reasons, and “ ‘[t]hose 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’ ” … . * * * In our view, “[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court’s imposition of a sentence greater than that imposed after the initial conviction”… . People v Rhodes, 847, 4th Dept 9-27-13