People v. Best

112 A.D.2d 942, 492 N.Y.S.2d 463, 1985 N.Y. App. Div. LEXIS 52157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 5, 1985
• Status: Published

Opinion

Appeals by defendant (1) from a judgment of the Supreme Court, Queens County (Browne, J.), rendered December 20, 1980, convicting him of rape in the first degree and resisting arrest, upon a jury verdict, and imposing sentence; and (2) by permission, from an order of the same court, dated November 15, 1982, which denied his motion to vacate the judgment.

Order affirmed.

Judgment modified, on the law, by vacating the sentence imposed on the conviction for rape in the first degree. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for resentencing.

In 1977 defendant had been convicted of rape in the first degree and sentenced to an indeterminate prison term of 5 to 15 years. This court reversed that conviction (see, People v Best, 73 AD2d 651), and, upon retrial, defendant was sentenced to 8Ys to 25 years for the same crime. This sentence is vacated and the matter remitted for resentencing because the court failed to place on the record its reasons for imposing after the retrial a more severe sentence (see, North Carolina v Pearce, 395 US 711; People v Miller, 103 AD2d 808, affd 65 NY2d 502).

We have considered such other contentions as have been preserved for our review and find them to be lacking in merit. Mangano, J. P., Brown, O’Connor and Weinstein, JJ., concur.