People v. Miller

O’Connor, J.,

dissents and votes to modify the judgment appealed from by vacating the sentence imposed and to thereupon remit the matter to the County Court, Rockland County, for resentence in accordance with the following memorandum: In my view, the majority decision flies in the face of the clear and unequivocal rule enunciated in North Carolina v Pearce (395 US 711, 723). That rule, restated by this court in People v Simone (78 AD2d 685), prohibits a court from imposing a greater sentence following retrial in the absence of objective information appearing affirmatively on the record concerning conduct on the part of the defendant occurring after the original sentence (see, also, Blackledge v Perry, 417 US 21; Chaffin v Stynchcombe, 412 US 17; People v Yannicelli, 47 AD2d 911, mod on other grounds 40 NY2d 598). At bar, no such information appears on the record; indeed, the sentencing court explicitly stated it was not considering certain incidents involving defendant which had occurred after the original sentence. Consequently, the court could not permissibly impose a harsher sentence than the one originally imposed. 11 Adopting the reasoning of the sentencing court, however, the majority purports to distinguish North Carolina v Pearce (supra) and its progeny on the ground that the case under review involves a negotiated plea which had been agreed to by the People in order to spare the victim the anguish of testifying. But the purported distinction has no relevance. In order to assure the absence of vindictiveness, North Carolina v Pearce (supra, p 726) permits an enhanced sentence, by its very language, only upon “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding”. The majority concedes, as it must, that this is not the case at bar. Moreover, Simpson v Rice (395 US 711), a companion case to North Carolina v Pearce (supra), involves a guilty plea like the instant case and yet the above-cited rule was still held to be applicable. This was so even though every plea agreement, not just the one in the instant case, involves a trade to some extent (Simpson v Rice, 395 US 711, 742, supra [Black, J., concurring in part and dissenting in part]), and when a defendant chooses, following reversal of the judgment entered on the plea, to plead not guilty and to exercise his right to a trial, the consideration supporting the original plea bargain is always removed. K Notwithstanding the majority’s implications to the contrary, the net effect of today’s decision is to punish defendant for having exercised his right to postconviction review and for having put the People to their proof — in clear violation of North Carolina v Pearce (supra). It may well be that Corbitt v New Jersey (439 US 212), cited by the majority, indicates that a guilty plea may result in mercy; the case does not, however, imply that a trial should cost a defendant a harsher sentence. A court may permissibly condition a plea bargain on a waiver of defendant’s right to appeal (see People v Williams, 36 NY2d 829, cert den 423 US 873; People v Gray, 75 AD2d 826), but if such a waiver is not given, then in my opinion, North Carolina v Pearce (supra) constrains the court from imposing a harsher sentence should the defendant subsequently go to trial and be found guilty.