PEOPLE v. ROGNER (2001)

Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered November 24, 1999, which resentenced defendant following his conviction of the crime of sodomy in the first degree (two counts).

Following his conviction of, inter alia, two counts of sodomy in the first degree, defendant was sentenced as a second felony offender to concurrent terms of 12 1/212 to 25 years in prison.   Upon appeal, this Court dismissed various misdemeanor counts as barred by the Statute of Limitations and held that defendant had been improperly sentenced as a second felony offender on the remaining sodomy charges (265 A.D.2d 688, 697 N.Y.S.2d 363).   The matter was remitted to County Court and defendant was resentenced to consecutive prison terms of 8 1/313 to 25 years on the two counts of sodomy.   Defendant appeals contending that County Court improperly resentenced him to a harsher sentence as a first felony offender than the original sentencing court imposed upon him as a second felony offender.   We affirm.

 “Unlike those cases which hold that following a successful appeal and retrial, a court, absent a reasoned and legitimate justification, may not impose a greater sentence than was originally imposed (see, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656;  People v. Miller, 65 N.Y.2d 502, 493 N.Y.S.2d 96, 482 N.E.2d 892, cert. denied 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300;  People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897, lv. denied 70 N.Y.2d 642, 518 N.Y.S.2d 1034, 512 N.E.2d 560), at bar, there was never a prior legal sentence imposed.   Once the original sentence was vacated on the ground that it was illegal, the court on resentencing was not bound by either the minimum or maximum limits of the original sentence, which had become a nullity * * * ” (People v. Fuller, 134 A.D.2d 278, 279, 520 N.Y.S.2d 449, lv. denied 70 N.Y.2d 931, 524 N.Y.S.2d 683, 519 N.E.2d 629 [citations omitted];  see, People v. Harrington, 21 N.Y.2d 61, 64, 286 N.Y.S.2d 477, 233 N.E.2d 456;  People v. Gillette, 33 A.D.2d 587, 304 N.Y.S.2d 296).   Thus, the resentencing court was free to impose consecutive sentences, the aggregate of which was greater than that originally imposed.   Likewise, defendant's claim that the sentence was attributable to vindictiveness for having taken an appeal is unpersuasive in light of the fact that it was imposed by a different Judge who adequately explained the reasons for the sentence imposed (see, People v. Acevedo, 224 A.D.2d 727, 637 N.Y.S.2d 233, lv. denied 88 N.Y.2d 875, 645 N.Y.S.2d 450, 668 N.E.2d 421;  cf., People v. Young, 94 N.Y.2d 171, 178, 701 N.Y.S.2d 309, 723 N.E.2d 58).

ORDERED that the judgment is affirmed.