This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 160
The People &c.,
            Respondent,
        v.
Antonio Martinez,
            Appellant.




          David J. Klem, for appellant.
          Jordan K. Hummel, for respondent.




LIPPMAN, Chief Judge:
          We are asked to decide whether a defendant's sentencing
comports with due process where he rejects a plea offer of 10
years’ probation for a single crime and, after being tried and
convicted on multiple charges, is sentenced to 10 to 20 years'

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imprisonment.    Because a presumption of vindictive sentencing
does not apply to the circumstances presented here, we affirm the
order of the Appellate Division.
            Defendant was charged with rape in the first degree,
course of sexual conduct against a child in the first degree,
sexual abuse in the first degree, sexual misconduct, and
endangering the welfare of a child for committing acts against
his neighbor's six-year-old daughter multiple times between May
1998 and August 1999.    After raping her, according to the victim,
defendant told her, "if you tell anyone, I will kill your
parents."    In 2007, the victim revealed to her mother what
defendant had done and defendant was arrested.
            Before trial, the People offered defendant a plea to
second-degree rape with a sentence of 10 years' probation.       In
cautioning defendant about rejecting the plea, the court
emphasized that "these allegations are very, very serious . . .
[Defendant] faces exposure to 25 years in prison . . . [and] he's
not going to see the likes of [10 years' probation] from this
Court if he's convicted."    Stressing that the offer "should be
given some careful, careful, consideration," the court remarked
that accepting the plea "would spare the witness or the victim to
have to testify," and "[i]f you blow this trial, you are going to
prison . . . [F]or how long will be determined by what comes
back, if the jury convicts you."    Defendant rejected the plea
offer and was found guilty of rape in the first degree, sexual


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abuse in the first degree, sexual misconduct, and endangering the
welfare of a child.
          At sentencing, the victim spoke about the abuse and
described how defendant's actions had changed her life.   When
asked if he wanted to say anything, defendant only stated that
the victim was "acting like an actress and I would like proof
submitted."
          Before imposing the sentence, the court noted that
defendant's statement "clearly doesn't make me want to give him
leniency . . . I was the [c]ourt that presided over the trial, I
heard the testimony and the evidence at the trial, and I am
basing my sentence solely on what the evidence was and what I am
legally allowed to do."   The court also acknowledged the numerous
letters of support for defendant.   Defendant was sentenced to an
aggregate term of imprisonment of 10 to 20 years.
          Under the Due Process Clause of the New York State
Constitution, a presumption of vindictiveness applies where a
defendant successfully appeals an initial conviction, and is
retried, convicted, and given a greater sentence than that
imposed after the initial conviction (see People v Young, 94 NY2d
171, 176 [1999]; People v Van Pelt, 76 NY2d 156, 160-161 [1990];
People v Miller, 65 NY2d 502, 508 [1985], cert denied sub nom.
Miller v New York, 474 US 951 [1985]).
          “[C]riminal defendants should not be penalized for
exercising their right to appeal” (Young, 94 NY2d at 176).     After


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a new trial, the sentencing court must give affirmative reasons
"concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing proceeding"
to justify a higher sentence (Van Pelt, 76 NY2d at 159 [quoting
North Carolina v Pearce, 395 US 711, 715-716 [1969]).
          In Van Pelt, the defendant successfully appealed his
trial conviction and a different judge imposed a higher sentence
after the defendant was convicted upon retrial.   This Court held
that the enhanced sentence “offend[ed] State constitutional due
process protections” because the judge offered no change in
circumstances “occurring subsequent to the first sentencing,
sufficient to overcome the presumption of institutional
'vindictiveness'” (76 NY2d at 158).
          In Miller, the defendant’s original lenient sentence,
which was vacated after a successful appeal from his conviction
after a guilty plea, was negotiated in exchange for sparing the
victim from testifying -- a “legitimate and reasoned basis” for
granting leniency, and a benefit the defendant relinquished when
he proceeded to trial after his appeal (see 65 NY2d at 508-509).
          By contrast, the same policy concerns are not
implicated when a defendant rejects a plea offer, proceeds to
trial for the first time, and is given a harsher sentence than
the plea offer.   "Given that the quid pro quo of the bargaining
process will almost necessarily involve offers to moderate
sentences that ordinarily would be greater, it is also to be


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anticipated that sentences handed out after trial may be more
severe than those proposed in connection with a plea" (People v
Pena, 50 NY2d 400, 412 [1980][internal citations omitted]).    In
Pena, this Court concluded that the defendant was not punished by
the imposition of the lawful, but greater, sentence received
after rejecting a lenient plea offer and proceeding to trial.
            Here, after hearing the court's warning that he would
not receive such leniency should he be found guilty, defendant
rejected the plea offer and proceeded to trial.   Supreme Court
imposed a lawful sentence, based upon defendant’s remorseless
statement at the sentencing hearing, the heinous nature of the
crimes, and the victim’s sentencing statement.    Furthermore, the
plea offer would have required defendant to plead guilty to a
class D felony, whereas defendant was convicted after trial of a
class B violent felony offense for which the court could not have
legally imposed the probationary sentence offered with respect to
the plea.   Defendant's rejection of the plea offer also required
the victim to testify about the sexual abuse at trial, a factor
this Court has recognized as a legitimate basis for the
imposition of a more severe sentence after trial than that which
the defendant would have received upon a plea of guilty (see
Miller, 65 NY2d at 509).   Had the presumption of vindictiveness
applied to this case, these would constitute legitimate and
reasoned bases for the more severe sentence imposed (see Miller,
65 NY2d at 508-509).


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          Accordingly, the order of the Appellate Division should
be affirmed.




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People v Antonio Martinez
No. 160




PIGOTT, J.(dissenting):
           In my view, an appearance of judicial vindictiveness
arises when a trial judge is aware of an unsuccessful plea
discussion and, after trial, the same judge sentences the
defendant to a jail term that is significantly harsher from that
offered in the plea.   Regardless of how one feels about the plea
offer or the ultimate sentence after trial, an explanation of the
disparity is required.    Without it, a conclusion that defendant
is being punished for exercising his or her right to a trial is
ineluctable and reflects badly on the court.    Therefore, I
dissent.
           Defendant was charged with rape in the first degree,
first degree course of sexual conduct against a child and lesser
charges relating to his criminal actions - serious charges
indeed.    However, during the two years that the case was awaiting
trial, the prosecution repeatedly offered a disposition of no
prison time.   Indeed, the prosecutor put before the trial court
an offer of probation in return for a plea of guilty to rape in
the second degree.   The court expressed no objection to such a
resolution at that time.    Defendant asked for time to consider
the offer, but eventually rejected it.


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           Following conviction, and at the time of original
sentencing, the victim made an impact statement and the
prosecution asked that the maximum sentence be imposed by the
court.   Defendant was accompanied by numerous family and friends
at sentencing, and presented over forty letters of support
detailing his life and accomplishments.   He had no criminal
history and the presentence report was noted by the court to be
very favorable to him.   Before imposing sentence, the court,
stating that no sentence could "erase the victim's pain and
hoping that she could find comfort and closure," imposed the
maximum sentence of 20 years.
           Following reversal of his sentence for reasons not
germane to this discussion, defense counsel argued prior to
resentencing that, given the plea offers of probation in this
case, any sentence even close to the maximum term would be a
gross disparity and calls into question whether defendant was
being punished for exercising his right to a trial.
Nevertheless, the court imposed the most severe sentence
permitted.   It noted that it had originally imposed what it "felt
was the appropriate sentence," but did not comment on why a
sentence of probation before trial became a maximum sentence of
imprisonment afterwards.
           It goes without saying that plea bargaining is part of
our criminal justice system (Bordenkircher v Hayes, 434 US 357
[1978]).   And we have said that during the bargaining process,


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the State may encourage a guilty plea by offering certain
benefits, such as reduced exposure to the potential maximum
sentence otherwise available, notwithstanding the fact that this
has the effect of discouraging a defendant's assertion of his
right to a trial (see People v Pena, 50 NY2d 400 [1980]).    It
follows that the fact that a sentence imposed after trial is
greater than that offered during a plea negotiation is no clear
indication that the defendant is being punished for asserting his
right to proceed to trial.    "Given that the quid pro quo of the
bargaining process will almost necessarily involve offers to
moderate sentences that ordinarily would be greater, it is also
to be anticipated that sentences handed out after trial may be
more severe than those proposed in connection with a plea" (Pena,
50 NY2d at 412).   However, it is equally true that if a defendant
refuses to plead guilty and goes to trial, retaliation or
vindictiveness may play no role in sentencing following a
conviction (see Corbitt v New Jersey, 439 US 212 [1978]).    The
conventional concerns in sentencing, which include the
considerations of deterrence, rehabilitation, retribution, and
isolation, must be the factors weighed when sentence is imposed
(see People v Suitte, 90 AD2d 80 [2d Dept 1982]).
          The "presumption of vindictiveness" of a sentence arose
out of the United States Supreme Court case North Carolina v
Pearce (395 US 711 [1969]).   There the defendant, Pearce, was
convicted in a North Carolina court of assault with intent to


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rape and sentenced to serve 12 to 15 years in prison; in a
companion case, the defendant, Rice, pleaded guilty to four
charges of burglary and was sentenced in an Alabama court to
serve a total of 10 years.   After having served several years,
Pearce was granted a new trial because a confession used against
him was held to have been obtained in violation of his
constitutional right not to be compelled to be a witness against
himself; Rice's conviction was set aside because, although he was
indigent, he had not been provided with a court-appointed lawyer
at the time he made his guilty plea.    Both were retried and again
convicted.    Rice's sentence was increased to 25 years, and no
credit was given for time he had previously served; Pearce was
sentenced to eight years which, when added to the time he had
already served, amounted to a longer sentence than originally
imposed.   Because in neither case did the record contain any
justification for the increased sentence, the United States
Supreme Court reversed the sentences as being unconstitutionally
vindictive.
           This Court adopted the Pearce presumption in cases
where a defendant is successful on appeal and after a retrial
receives a much greater sentence than his original one (see
People v Van Pelt, 76 NY2d 156 [1990]).    The majority chooses to
use the distinction between a retrial following a successful
appeal and a mere offer followed by a trial to distinguish this
case.   But to me, this makes no sense.   The issue is


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vindictiveness, not procedural routes.
           New York appellate courts have routinely reduced
sentences in cases in which the disparity between the plea offer
and the imposed sentence was great.     For example, in People v
Brown (70 AD2d 505, 505-506 [1st Dept 1970]), the court reduced a
sentence where there was a disparity between the plea offer of 5
to 10 years and imposed sentence of 8 to 24 years.     The court
found the sentence "create[d] the appearance that the defendant
was being punished for proceeding to verdict, rather than
receiving merely the sentence which his crime and record
justified" (id.).    In People v Cosme, (203 AD2d 375 [2d Dept
1994]), the court reduced a sentence to 15 years to life because
of the disparity between plea offer of 8 years to life and
imposed sentenced of 25 years to life.     While those courts may
have done so through their interest of justice jurisdiction,       I
suggest that this Court's authority - as a matter of law - can,
has and should be used to require an explanation in cases such as
the one before us.
           The difference between the sentences in this case is
glaring.   A court cannot claim to be surprised by testimony in a
rape case that has been pending before it since the time of its
indictment.   There is no showing in this record that the sexual
assault, serious as it was, merited a choice between letting the
alleged perpetrator walk the streets following a sentence of
probation or twenty years in jail.      An explanation, hopefully a


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reasonable one, is necessary.       Had the court indicated the basis
for the increased sentence, this court may have considered this
information sufficient to render the sentence “non-vindictive."
With a 10-20 fold increase in sentence, the sentencing court
should "at a minimum state on the record the additional facts
which emerged .. .. that changed the court's viewpoint on
sentencing, and how those matters factored into the court's
decision" (Longley v State, 902 So 2d 925 [Dist Ct. Florida,
2005]).
              For these reasons, I would reverse the imposition of
the sentence and remit the matter to the trial court for
resentencing, this time with an explanation for the disparity, if
any.
*   *     *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed. Opinion by Chief Judge Lippman. Judges Rivera,
Abdus-Salaam, Stein and Fahey concur. Judge Pigott dissents in
an opinion.

Decided November 19, 2015




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