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SENTENCE IMPOSED AFTER THE SECOND TRIAL SHOULD NOT HAVE BEEN HIGHER THAN THE SENTENCE IMPOSED AFTER THE FIRST TRIAL (SECOND DEPT).

The Second Department, reducing defendant’s sentence imposed after a second trial, determined the sentence imposed after the first trial should not have been “enhanced:”

“Under the Due Process Clause of the New York State Constitution, a presumption of vindictiveness applies where a defendant successfully appeals an initial conviction, and is re-tried, convicted, and given a greater sentence than that imposed after the initial conviction” … . “[C]riminal defendants should not be penalized for exercising their right to appeal” … .  Where, as here, the defendant is convicted of the same count at a new trial following a successful appeal, the sentencing court may not impose a higher sentence unless its reasons for doing so affirmatively appear on the record, and are “‘based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding'” … . Inasmuch as the prosecutor asserted that the defendant demonstrated no remorse for his crimes, the record reflects only that the defendant pleaded not guilty to the charges and exercised his constitutional right to remain silent … . In addition, the ongoing impact of the crime on the complainant does not constitute “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” … . Accordingly, the court should not have imposed the higher sentence. People v Diaz, 2020 NY Slip Op 07392, Second Dept 12-9-20

 

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