Opinion
November 2, 1987
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the resentence is affirmed.
The defendant was originally sentenced upon his conviction of attempted murder in the second degree to an indeterminate term of imprisonment of 10 to 20 years as an armed felon. On appeal, this court vacated the sentence upon the ground that attempted murder in the second degree is not a class B armed felony offense (see, CPL 1.20; Penal Law § 110.05; § 125.25 [1]; People v. Lawrence, 97 A.D.2d 718, affd 64 N.Y.2d 200), and remitted the matter for resentencing (People v. Fuller, 119 A.D.2d 692). Upon resentencing, the court imposed an indeterminate term of imprisonment of 7 to 21 years. We affirm.
Contrary to defendant's contention, in imposing a resentence following the vacatur of the original illegal sentence, the court was not barred from imposing a sentence having a maximum term of greater than 20 years. 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; People v. Miller, 65 N.Y.2d 502, cert denied ___ US ___, 106 S Ct 317; People v. Best, 127 A.D.2d 671, lv denied 70 N.Y.2d 642), 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 (see, People v. Harrington, 21 N.Y.2d 61, 64; People v. Garcia, 121 A.D.2d 465, affd 69 N.Y.2d 903, rearg denied 70 N.Y.2d 694; People v. Gillette, 33 A.D.2d 587). Thus, the court was free to impose a new legal maximum term which was greater than that originally imposed.
Beyond that, we find no merit to defendant's claim that the resentence was excessive. Mollen, P.J., Bracken, Brown and Weinstein, JJ., concur.