        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

847
KA 12-00847
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRENDAN J. RHODES, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT.


     Appeal from a resentence of the Allegany County Court (Thomas P.
Brown, J.), rendered February 10, 2012. Defendant was resentenced
upon his conviction of robbery in the first degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously modified on the law by reducing the sentence of
incarceration imposed for robbery in the first degree to a determinate
term of incarceration of 12 years and as modified the resentence is
affirmed.

     Memorandum: Defendant was convicted following a plea of guilty
of robbery in the first degree (Penal Law § 160.15 [4]) and was
sentenced to, inter alia, a determinate term of incarceration of 12
years and was ordered to pay restitution. On the appeal from that
judgment, we vacated the sentence on the grounds that restitution had
not been a part of the plea agreement and County Court erred in
failing to conduct a hearing to determine the amount of restitution
(People v Rhodes, 91 AD3d 1280, 1281, lv granted 19 NY3d 1028). We
remitted the matter to County Court “to impose the promised sentence
or to afford defendant the opportunity to withdraw his plea” (id.).
On remittal, the court resentenced defendant to, inter alia, a
determinate term of incarceration of 15 years. On this appeal from
the resentence, defendant contends that the increased sentence of
incarceration was impermissibly vindictive, and we agree.

     “In order to ensure that defendants are not being penalized for
exercising their right to appeal, ‘a presumption of [institutional]
vindictiveness generally arises when defendants who have won appellate
reversals are given greater sentences . . . than were imposed after
their initial convictions’ ” (People v Hilliard, 49 AD3d 910, 914, lv
denied 10 NY3d 959, quoting People v Young, 94 NY2d 171, 176, rearg
denied 94 NY2d 876; see generally People v Van Pelt, 76 NY2d 156, 159-
160). “The threshold issue in evaluating whether a resentence is
                                 -2-                           847
                                                         KA 12-00847

vindictive is whether the resentence is more severe than that
originally imposed” (People v Cahill, 46 AD3d 1455, 1456, lv denied 11
NY3d 830; see People v Rogers, 56 AD3d 1173, 1174, lv denied 12 NY3d
787; see generally Van Pelt, 76 NY2d at 159-160). In order to justify
an increased sentence, a court must set forth its reasons, and
“ ‘[t]hose reasons must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after the
time of the original sentencing proceeding’ ” (Van Pelt, 76 NY2d at
159 [additional emphasis added]).

     The court here justified the increase in the term of
incarceration by stating that defendant was “still not taking full
responsibility for [his] actions, and [was] minimizing the serious
nature of th[e] crime” (emphasis added). We reject that
justification. Although defendant admitted the facts of the crime
during his plea allocution, the original presentence investigation
report (PSR) indicated that defendant asserted his innocence,
questioned the veracity of the prosecutor’s witnesses and apparently
lied about how he came into possession of the firearm when he was
interviewed for that report. The original PSR also noted that
defendant had been the subject of numerous disciplinary infractions
while he was in custody pending the resolution of the criminal
proceeding. When he appeared for sentencing, defendant admitted that
he had a drug problem, that he had “made a lot of mistakes” and that
he suffered from bipolar disorder.

     Following our remittal, the court ordered an update to the PSR.
During his interview for that report, defendant again admitted his
conduct but questioned whether he deserved the 12-year sentence of
incarceration that the court had previously imposed. The updated PSR
also noted that defendant had not had any disciplinary infractions
since his original sentence was imposed. In our view, “[t]he record
is devoid of any objective information sufficient to rebut the
presumption of vindictiveness that arose from the court’s imposition
of a sentence greater than that imposed after the initial conviction”
(People v Jenkins, 38 AD3d 566, 567-568, lv denied 8 NY3d 986; see
Rogers, 56 AD3d at 1174-1175; People v Moye, 4 AD3d 488, 489, lv
denied 2 NY3d 803). We therefore modify the resentence by reducing
the sentence of incarceration imposed for robbery in the first degree
to a determinate term of 12 years.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
