| People v Brown |
| 2010 NY Slip Op 07628 [77 AD3d 1190] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GregoryBrown, Appellant. |
—[*1] Richard J. McNally, Jr., District Attorney (Gordon Eddy of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Rensselaer County (Nichols,J.), rendered August 26, 2009, upon a verdict convicting defendant of the crime of stalking in thesecond degree.
In 2009, this Court reversed defendant's prior conviction of stalking in the second degree andremitted the matter to County Court for a new trial (People v Brown, 61 AD3d 1007, 1008 [2009]).[FN1]Upon defendant's retrial, he was again found guilty of stalking in the second degree, adjudicateda persistent felony offender and sentenced to a prison term of 15 years to life. Defendant nowappeals, arguing that County Court committed reversible error by refusing to submit to the jurythe charge of stalking in the fourth degree as a lesser included offense and deprived him of dueprocess by imposing a sentence that was not only more severe than what he received after hisfirst trial, but inherently harsh and excessive.
A lesser offense, if requested, must be submitted to a jury for its deliberations if a [*2]reasonable view of the evidence supports the conclusion that thedefendant committed the lesser offense but not the greater and the defendant could not havecommitted the greater offense without committing the lesser (see CPL 1.20 [37]; People v Miller, 6 NY3d 295, 302[2006]; People v Beauharnois, 64AD3d 996, 1000 [2009], lv denied 13 NY3d 834 [2009]; People v Fairley, 63 AD3d 1288,1289 [2009], lv denied 13 NY3d 743 [2009]; People v Ogborn, 55 AD3d 1054, 1056 [2008], lv denied12 NY3d 761 [2009]; People vRyan, 55 AD3d 960, 964 [2008]). Here, defendant could only have been convicted ofstalking in the second degree if the jury found that he "intentionally engage[d] in a course ofconduct . . . which is likely to cause [the victim] to reasonably fear physical injuryor serious physical injury" (Penal Law § 120.50 [3]; see Penal Law § 120.55[2]), and there is no requirement that discernable injury of any kind be actually caused bydefendant's conduct. Stalking in the fourth degree as it relates to this prosecution requires thatdefendant's conduct actually causes "material harm to the mental or emotional health of [a]person" and, as such, is not necessarily committed when all of the relevant elements of stalkingin the second degree have been proven (Penal Law § 120.45 [2]). As a result, stalking inthe fourth degree was not a lesser included offense, and County Court correctly refused to submitit to the jury for its consideration.
We are persuaded, however, by defendant's argument with regard to County Court's decisionto impose a life sentence on defendant after his second trial. After defendant's first trial, CountyCourt sentenced him on all the crimes for which he was convicted to an aggregate term ofimprisonment that did not exceed four years. After his conviction for stalking in the seconddegree was reversed on appeal (61 AD3d at 1008), a new trial was held on that charge and, onessentially the same evidence, defendant was once again convicted. The prosecution then filed anapplication that defendant be adjudicated a persistent felony offender and, after a hearing resultedin such an adjudication, County Court sentenced defendant to a prison term of 15 years to life.Defendant claims—and we reluctantly agree—that no new evidence was presentedduring this second trial that would warrant such a dramatic increase in his sentence, and thatessentially all that appears to have occurred between his two trials is that his initial conviction forstalking in the second degree was reversed. It is undisputed that essentially the same evidencewas used against defendant on the retrial—and while defendant was adjudicated apersistent felony offender after his second trial, the criminal record that led to that finding was inthe possession of the District Attorney and fully before County Court when it imposed the initialfour-year sentence (see People vCahill, 46 AD3d 1455, 1456 [2007], lv denied 11 NY3d 830 [2008]; seegenerally People v Young, 94 NY2d 171, 176-177 [1999]; People v Van Pelt, 76NY2d 156, 159-160 [1990]).
"In order to ensure that defendants are not being penalized for exercising their right toappeal, a presumption of [institutional] vindictiveness generally arises when defendants whohave won appellate reversals are given greater sentences after their retrials than were imposedafter their initial convictions" (People vHilliard, 49 AD3d 910, 914 [2008] [internal quotation marks and citations omitted],lv denied 10 NY3d 959 [2008]; accord People v Young, 94 NY2d at 176). Toovercome the presumption, the reasons for the enhanced sentence must be placed on the record,and "be based on objective information concerning identifiable conduct on the part of thedefendant occurring after the time of the original sentencing proceeding" (People vYoung, 94 NY2d at 176-177).
Here, County Court's decision to increase defendant's sentence from four years in prison tolife imprisonment is undoubtedly based upon its finding entered after his second trial that he is apersistent felony offender. However, the District Attorney, apparently at the court's request, [*3]filed a similar application during defendant's first trial, thenwithdrew it without explanation prior to sentence being imposed. The District Attorney nowexplains for the first time that it decided to settle for a sentence significantly less than lifeimprisonment because of concerns that the persistent felony offender statute wasunconstitutional. In that regard, we note that even if the District Attorney's concerns regardingthe constitutionality of this statute were justified—and the statute was, in fact, later foundto be unconstitutional—the obvious remedy would have been for defendant to be returnedto County Court and a new sentence imposed.[FN2]The District Attorney does not represent that he was unable to pursue persistent felony offenderstatus for defendant at the first trial or that information critical to that effort only becameavailable after the application was withdrawn and sentence was first imposed. Under thecircumstances, the disparity between the two sentences only serves to reinforce the perceptionthat defendant is, in fact, being punished for prosecuting a successful appeal of his firstconviction. Therefore, the sentence as imposed must be vacated and the matter remitted forresentencing consistent with this decision.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of RensselaerCounty for resentencing; and, as so modified, affirmed.
Footnote 1: In the same opinion, this Courtaffirmed defendant's conviction for aggravated harassment in the second degree and reduced hiscontempt conviction to criminal contempt in the second degree.
Footnote 2: At the time of defendant's initialsentencing, the Court of Appeals had already upheld the constitutionality of the persistent felonyoffender statute (see People vRivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]; People vRosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]; see also People v West, 5 NY3d740 [2005], cert denied 546 US 987 [2005]).