| People v Cahill |
| 2007 NY Slip Op 10351 [46 AD3d 1455] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James F.Cahill, III, Appellant. |
—[*1] James F. Cahill, III, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a resentence of the Onondaga County Court (Anthony F. Aloi, J.), renderedJanuary 14, 2004. Defendant was resentenced upon his conviction of murder in the seconddegree, assault in the first degree and criminal possession of a weapon in the fourth degree (twocounts).
It is hereby ordered that the resentence so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a resentence imposed by County Court upon remittalfrom the Court of Appeals, which reduced defendant's conviction of murder in the first degree tomurder in the second degree and vacated the death sentence (People v Cahill, 2 NY3d 14 [2003]). We reject the contention ofdefendant in his main brief and pro se supplemental brief that the resentence is presumptivelyvindictive. The threshold issue in evaluating whether a resentence is vindictive is whether theresentence is more severe than that originally imposed (see generally People v Young, 94NY2d 171, 176 [1999], rearg denied 94 NY2d 876 [2000]; People v Van Pelt, 76NY2d 156 [1990]), and here it cannot be gainsaid that the death penalty originally imposed wasmore severe than the consecutive terms of imprisonment imposed on resentencing. We reject thefurther contention of defendant in his pro se supplemental brief that, pursuant to Penal Law§ 70.25 (1), the failure of the original sentencing court to specify whether the deathsentences were consecutive to the sentence of imprisonment imposed for the assault countrendered the sentences concurrent by operation of law, and thus bound the resentencing court toimpose only concurrent sentences. Because a sentence of death can be neither concurrent norconsecutive to a sentence of imprisonment, the original sentencing court did not address the issuenow raised by defendant. In any event, Penal Law § 70.25 (2-b) requires that the sentencesfor murder and assault in this case run consecutively. The Court of Appeals remitted the matter toCounty Court to resentence defendant on all counts (Cahill, 2 NY3d at 72), and the courtproperly imposed consecutive sentences that were consistent with Penal Law § 70.25 (2-b).Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.