People v. Reyes

141 A.D.2d 433, 529 N.Y.S.2d 775, 1988 N.Y. App. Div. LEXIS 7258

Opinions

Judgment of the Supreme Court, Bronx County (Richard Lee Price, J.), rendered July 15, 1987, convicting the defendant, after a jury trial, of criminal trespass in the second degree and sentencing him to a definite term of imprisonment of one year, affirmed.

The defendant was originally sentenced to a term of 10 months, and he moved to vacate the sentence since the maximum permissible was six months, pursuant to Penal Law § 70.15 (1). The prosecutor cross-moved to sentence the defendant as a second crime offender, which motion the court had originally denied. The cross motion was granted, and the defendant was sentenced to one year.

The dissent contends that vindictiveness played a part in the increase in the sentence. (See, North Carolina v Pearce, 395 US 711.) The point is misconceived. Once the second offender provision is invoked, the enhancement of sentence is proper. There is no constraint against it. (Cf., Matter of Kisloff v Covington, 141 AD2d 319.)

The defendant knew he could be subject to a second crime offender contention. (Cf., People v Green, 68 NY2d 151, 153.) Concur — Kupferman, J. P., Ross, Kassal and Smith, JJ.