Opinion
April 17, 1989
Appeal from the Supreme Court, Richmond County (Kuffner, J.).
Ordered that the judgment is affirmed.
The defendant was convicted in 1982 of robbery in the first degree and robbery in the second degree, and he was sentenced as a second felony offender to indeterminate concurrent terms of imprisonment of 5 to 10 years and 4 to 8 years, respectively. However, this court reversed the judgment on the basis of errors in the court's charge and ordered a new trial (People v. Van Pelt, 119 A.D.2d 707). The case was retried before a different Justice, and the defendant was again convicted upon a jury verdict, but he was sentenced as a second felony offender to indeterminate concurrent terms of 7 1/2 to 15 years on the robbery in the first degree conviction, and 6 to 12 years on the robbery in the second degree conviction.
We reject the defendant's contention that the imposition of a greater sentence upon him after retrial violated his right to due process. Although a presumption of vindictiveness may arise when a greater sentence is imposed following a retrial, where, as here, the sentences are imposed by different Justices, the presumption is inapplicable, and the defendant has the burden of proving actual vindictiveness upon resentencing (see, Texas v McCullough, 475 U.S. 134; People v. Best, 127 A.D.2d 671, lv denied 70 N.Y.2d 642; People v. Alvarez, 134 A.D.2d 599, lv denied 71 N.Y.2d 892). The defendant has failed to meet this burden in view of the court's statements that it was imposing its sentence based on a number of factors including the defendant's lengthy criminal record and the impact of the crime upon the victim.
We further find that the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are unpreserved for our review. Mollen, P.J., Thompson, Lawrence and Kunzeman, JJ., concur.