Whether the Defendant's sentence was presumptively vindictive where, upon retrial, the term imposed for an individual count was longer than that imposed after the first trial for the same count.

No. Despite the difference in the length of sentence, no presumption of vindictiveness arose from Defendant's sentence. There was no "reasonable likelihood" that the longer sentence on the individual count was the result of vindictiveness.

Defendant had a criminal history including convictions for burglary and murder and was tried in connection with two burglaries. After a jury trial, the supreme court returned the following sentences and convictions against defendant: concurrent terms of twenty-five years to life for first-degree robbery and first-degree burglary; twenty years to life for second-degree burglary; concurrent terms of two to four years for fourth-degree criminal possession of stolen property and fourth-degree grand larceny; and, one year for fifth-degree criminal possession of stolen property. For the counts of first-degree robbery and first-degree burglary, the court sentenced Defendant as a persistent violent felony offender. For the fourth-degree criminal possession of stolen property and fourth-degree grand larceny counts, the court sentenced Defendant as a second felony offender. Accordingly, the supreme court sentenced defendant to an aggregate term of forty-five years to life in prison.

The Appellate Division reversed all of the convictions after it found that Defendant's confession was the product of an unlawful arrest and he was retried before a different judge. The retrial resulted in a conviction on the charge of fourth-degree criminal possession of stolen property and acquittals on all other charges. The court sentenced Defendant as a persistent felony offender and accordingly imposed a sentence of twenty-five years to life. As the basis for the sentence, the court cited Defendant's conviction for fourth degree criminal possession of stolen property, his status as a persistent felony offender, and his extensive criminal record .

A presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions. Here, the Defendant contended that the length of the later sentence indicated that it was presumptively vindictive since it was longer than that imposed by the first court. The Appellate Division rejected that claim. It noted that the Defendant did not in fact receive an increased sentence given that that appropriate comparison was between the aggregate sentences originally imposed and those from the reconviction, rather than between the sentences imposed on any single count.

The Court of Appeals affirmed the Appellate Division's decision but based upon different reasoning. The Court rejected the "aggregate" and "count by count" comparison and instead adopted the "reasonable likelihood of vindictiveness" approach. The Court found that the sentence imposed after retrial did not give rise to a presumption of vindictiveness because the circumstances of the case did not " evince a reasonable likelihood that the greater sentence on the individual count was the result of vindictiveness." Instead the judge in the second trial merely made use of "the flexibility and discretion vital to sentencing courts" to impose a sentence appropriate to the conviction returned, defendant's status as a persistent felony offender, and his extensive criminal record.