| People v Rogers |
| 2008 NY Slip Op 08827 [56 AD3d 1173] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CharlesRogers, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), renderedJuly 28, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toNiagara County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [1]). We previously reversed the judgmentconvicting defendant of murder in the second degree (§ 125.25 [3]) and robbery in the firstdegree and granted defendant a new trial on those counts (People v Rogers, 16 AD3d 1101 [2005]), and the judgment now onappeal is the result of the retrial. Defendant failed to preserve for our review his contention thatthe evidence is legally insufficient to support the conviction inasmuch as his motion for a trialorder of dismissal was not " 'specifically directed' at the alleged error" advanced on appeal(People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit(see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and we reject defendant'sfurther contention that the verdict is against the weight of the evidence (see generally id.).Defendant further contends that the verdict is inconsistent because he was acquitted of felonymurder. Defendant failed to raise that contention before the jury was discharged and thus failedto preserve his contention for our review (see People v Griffin, 48 AD3d 1233, 1234 [2008], lvdenied 10 NY3d 840 [2008]; seegenerally People v Carter, 7 NY3d 875, 876 [2006]). In any event, we conclude that it iswithout merit (see People v Trotter, 255 AD2d 925, 926 [1998], lv denied 93NY2d 980 [1999]).
We agree with defendant, however, that County Court erred in increasing his sentence afterthe retrial. Following the first trial, defendant was sentenced to a determinate term ofimprisonment of 20 years on the robbery count and an indeterminate term of imprisonment of 20years to life on the murder count, but he was sentenced to a determinate term of imprisonment of25 years on the robbery count following the retrial. "The threshold issue in evaluating whether aresentence is vindictive is whether the resentence is more severe than that originally imposed"(People v Cahill, 46 AD3d1455, 1456 [2007]; see generally People v Young, 94 NY2d 171, 176-177 [1999],[*2]rearg denied 94 NY2d 876 [2000]; People v VanPelt, 76 NY2d 156, 159-160 [1990]), and a determinate sentence of 25 years is of coursemore severe than one of 20 years. Other factors that give rise to a presumption of vindictivenessare that the court imposed a greater sentence following the retrial despite the absence of any newinformation concerning defendant (see Van Pelt, 76 NY2d at 161), and, althoughdefendant was acquitted of the murder count, the court stated at sentencing that it "feltconstrained to impose the sentence because a death was involved." We further conclude that"[t]he record is devoid of any objective information sufficient to rebut the presumption ofvindictiveness that arose from the court's imposition of a sentence greater than that imposed afterthe initial conviction" (People vJenkins, 38 AD3d 566, 567-568 [2007], lv denied 8 NY3d 986 [2007]). Wetherefore modify the judgment by vacating the sentence, and we remit the matter to County Courtfor resentencing. Present—Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.