Opinion
April 7, 1975
Appeal by defendants, as limited by their brief, from two resentences (one as to each defendant) of the County Court, Westchester County, both imposed March 25, 1974, upon their conviction of possession of gambling records in the first degree (one count as to each defendant) and promoting gambling in the first degree (one count as to each defendant), upon their pleas of guilty, the resentences being as to defendant Yannicelli two concurrent definite terms of five months in the Westchester County Penitentiary; and as to defendant Gariola two concurrent definite terms of 75 days in the same penitentiary. Fines previously imposed upon both defendants were remitted. Resentence of defendant Yannicelli modified, as a matter of law, by reducing his sentence to two concurrent definite terms of three months. Resentence of defendant Gariola modified, as a matter of law, by reducing his sentence to two concurrent definite terms of two months. As so modified, resentences affirmed. The sentences originally imposed upon defendants, and thereafter completely executed, called for a fine and a short definite prison term. On appeal by the People, we reversed and remanded the cases to the County Court for the purpose of resentencing, holding that the sentences "were invalid as a matter of law, because of failure to comply with section 80.00 Penal of the Penal Law, since the sentencing court made no findings as to the amount of the gain of these defendants from the crime" (People v Yannicelli, 40 A.D.2d 564, 565, affd 33 N.Y.2d 621). On resentencing, the County Court remitted the fines, but imposed longer definite prison terms, with credit for time served. On this record, the constitutional guarantee against double jeopardy prevents imposition of an increased term of imprisonment (Sullens v United States, 409 F.2d 545; North Carolina v Pearce, 395 U.S. 711, 717; United States v Benz, 282 U.S. 304, 307; Matter of Lange, 85 U.S. 163; cf. Bozza v United States, 330 U.S. 160; United States v Richardson, 498 F.2d 9). Even where the second sentence imposed follows a successful appeal by the defendant, due process requires that a longer term of imprisonment be justified by conduct on the part of the defendant occurring after the time of the original sentencing (People v Williams, 34 N.Y.2d 657; North Carolina v Pearce, supra, 395 U.S. 711, 726). That the additional time in prison is justified by the rescission of the fines is scarcely arguable (Burton v Goodlett, 480 F.2d 983; Argersinger v Hamlin, 407 U.S. 25). We have therefore reduced the definite sentences to those originally imposed. Hopkins, Acting P.J., Latham, Cohalan, Brennan and Munder, JJ., concur.