holding that common handkerchief with which a victim was gagged and which led to his asphyxiation was a “dangerous instrument” within the meaning of the Penal Law
How later courts described this case
- holding that common handkerchief with which a victim was gagged and which led to his asphyxiation was a “dangerous instrument” within the meaning of the Penal Law
Written by the judges who cited it.
The opinion
Markewich, J. (concurring in part and dissenting in part).
My colleague has based his conclusion that Cwikla’s sentence should be reduced on the holding in North Carolina v Pearce *50 ( 395 US 711 ) particularly the excerpt therefrom which lays down the rule that a Judge who increases a defendant’s sentence after a new trial has the burden, if the increase of sentence is to be deemed constitutional, of stating his reasons therefor, which must be based upon an objective showing of "identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” (p 726). It provides an interesting excursion into the judicial process to find a rational basis for such a rule.
Two cases were reviewed together in this opinion: Pearce v State of North Carolina (397 F2d 253) and Simpson v Rice (396 F2d 499). Both cases were decided below on the authority of Patton v North Carolina (381 F2d 636, cert den 390 US 905 ), to the effect that "the risk of a greater sentence * * * on retrial may prevent defendants who have been unconstitutionally convicted from attempting to seek redress” (p 639). Patton was so quoted in the District Court opinion in Rice v Simpson ( 274 F Supp 116, 120 ), which was adopted as its own by the Court of Appeals (396 F2d 499, 500). In Pearce , the Court of Appeals, in affirming the District Court’s grant of relief from an increased sentence (397 F2d 253), did so on the authority of Patton (p 254), declining to reconsider that holding. The principle that a sentencing Judge may not increase punishment on retrial in retaliation for a defendant’s successful attack on a prior conviction is therefore well established. And it is so profoundly right that it must be accepted. However, the "rule” set out on page 726 of Pearce is without basis whatever in the record except as it provides a vehicle for affirmance in Pearce—not in Rice , where a definite basis appears for a finding of vindictiveness: "I would accept the Federal District Judge’s conclusion that the State in this case attempted to punish Rice for lawfully challenging his conviction” (Black, J., 395 US 711, 739 ). But in Pearce , "there is not a line of evidence to support the slightest inference that the trial judge wanted or intended to punish Pearce for seeking post-conviction relief.” (Black, J., 395 US 711, 740 .) There being no such evidence, the Pearce majority had to enact— Justice Black called it "pure legislation if there ever was legislation” (p 741)—what amounts to a presumption that a Judge resentencing to a longer term on retrial does so out of vindictiveness unless rebutted by affirmative proof of defendant’s postoriginal sentence conduct. Nor is there a definition of what conduct would justify a longer term. Nor is it reasona *51 ble or practical to imagine any such conduct, for most such defendants would have been in jail where untoward conduct would be otherwise punishable. In short, this would actually be an irrebuttable presumption in virtually all such cases. A more reasonable standard would be "any objective, identifiable factual data, not known to the trial judge at the time of the original sentencing proceeding.” (White, J., p 751.)
Regardless of what appears above, the Supreme Court is the Supreme Court, and the rule of law is to be respected even when aberrant. Therefore, on constraint, reluctantly, I join the majority as to the reduction of Cwikla’s sentence.
Not so as to Ford. Regardless of the dispositon as to Cwikla, Ford’s sentence should not be disturbed. There is no basis whatever for a finding of vindictiveness based on successful appeal in Ford’s case; he was not apprehended until after the first trial, and appeared only in the second trial. As to disparity, cited by the majority as the reason for reduction of Ford’s sentence to match Cwikla’s, it is not a basis for reduction of sentence, and is appropriate to the character of this defendant and his crime. (People v Junco, 43 AD2d 266 , affd 35 NY2d 419 , cert den 421 US 951 .) If Cwikla is the beneficiary of a windfall, I see no reason why his partner in crime should have the same benefit.
Lane and Lynch, JJ., concur with Birns, J. P.; Markewich, J., concurs as to defendant Cwikla and dissents as to defendant Ford, in an opinion.
Judgment, Supreme Court, Bronx County rendered on May 30, 1975, modified, as a matter of discretion in the interest of justice, only to the extent of reducing the sentence imposed upon defendant [Ford] for the crime of burglary in the first degree to an indeterminate term not to exceed 15 years (CPL 470.15, subd 2, par c; subd 3 and CPL 470.20, subd 6), and otherwise affirmed.
Judgment, Supreme Court, Bronx County rendered on May 30, 1975, unanimously modified, on the law, only to the extent of reducing the sentence imposed upon defendant [Cwikla] for the crime of burglary in the first degree to an indeterminate term not to exceed 15 years (CPL 470.15, subds 2, 3, 4, par [c]), and otherwise affirmed.