| People v Coon |
| 2007 NY Slip Op 08134 [45 AD3d 897] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TimothyCoon, Appellant. |
—[*1] Donald F. Cerio Jr., District Attorney, Wampsville, for respondent.
Mugglin, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered December 21, 2006, which resentenced defendant following his conviction of the crimeof assault in the second degree.
As is set forth more fully in our prior decision (34 AD3d 869 [2006]), defendant wasconvicted after a nonjury trial of depraved indifference assault for cutting his sister twice in theneck and throat with a butcher knife. Because the proof was insufficient to establish depravedindifference assault, we modified his conviction on appeal by reducing it to assault in the seconddegree and remitted the matter to County Court for resentencing and modification of the order ofprotection that had been imposed (id. at 870-871). Thereafter, County Court resentenceddefendant to a term of imprisonment of seven years to be followed by three years of postreleasesupervision, but failed to modify the order of protection. Defendant now appeals.
Defendant contends that his sentence is harsh and excessive and that it is the result ofvindictiveness on the part of County Court in response to defendant's successful appeal. Wedisagree. Inasmuch as "the sentence imposed was not enhanced but diminished" (People vThomas, 283 AD2d 724, 725 [2001]) and a review of the record reveals " 'no reasonablelikelihood of vindictiveness' " (People vSeavey, 9 AD3d 742, 743 [2004], lv denied 4 NY3d 748 [2004], quotingPeople v Young, 94 NY2d 171, 179 [1999]), defendant's claim that it was vindictive isunpersuasive. The fact that, following our modification of defendant's [*2]conviction from assault in the first degree to assault in the seconddegree, County Court's sentence went from one in the middle of the permitted range for firstdegree assault—15 years—to the maximum sentence under his second degreeassault conviction—seven years—does not demonstrate vindictiveness. Defendant'ssentence is undeniably reduced and, as the underlying facts of defendant's criminal conductremained the same, the sentence imposed by County Court permissibly fell at a different point inthe sentencing range in order to reflect the appropriate sentence under the modified conviction inlight of defendant's history and conduct (see People v Young, 94 NY2d at 180-181).
Furthermore, we reject defendant's claim that his sentence was harsh and excessiveconsidering the victim's expression of forgiveness and request for leniency and his assertions ofprogress while incarcerated. As we observed in our previous decision (34 AD3d at 870),defendant's conduct was reprehensible and we find no abuse of discretion in the sentenceimposed nor do we discern any extraordinary circumstances which would warrant modificationin the interest of justice (see People vHogencamp, 6 AD3d 877, 878 [2004], lv denied 3 NY3d 707 [2004]).
However, inasmuch as County Court failed to modify the order of protection upon remittal(34 AD3d at 871), we are constrained to remit once again so that County Court may address thiserror.
Crew III, J.P., Peters, Rose and Kane, JJ., concur. Ordered that the judgment is modified, onthe law, and matter remitted to the County Court of Madison County for modification of theorder of protection, and, as so modified, affirmed.