Opinion
December 5, 1988
Appeal from the Supreme Court, Westchester County (Dachenhausen, J.).
Ordered that the resentence is affirmed.
The defendant was originally sentenced upon his conviction for robbery in the first degree to an indeterminate term of 10 years to life as a persistent violent felony offender. On appeal, this court vacated the sentence on the ground that the sentencing court (Reilly, J.) had erred in adjudicating the defendant to be a persistent violent felony offender; the defendant was adjudicated a second violent felony offender and the matter was remitted for resentencing (People v Taylor, 103 A.D.2d 853). Upon resentencing, the matter was referred to a new Justice since the original sentencing Justice was apparently unavailable. The court imposed an indeterminate term of imprisonment of 12 1/2 to 25 years.
Contrary to the defendant's contentions, we do not find that the imposition of the maximum allowable term was excessive in light of the defendant's prior criminal history, which included three prior convictions resulting from armed robbery incidents during a three-year period, and the nature of this conviction, which also resulted from an armed robbery incident. Moreover, we find no exceptional circumstances to support a claim that the imposition of the resentence constituted cruel and unusual punishment in violation of constitutional proscriptions (NY Const, art I, § 5; US Const 8th Amend; see, People v Roberts, 144 A.D.2d 395).
In addition, we find no merit to the defendant's claim that the court was constitutionally prohibited from imposing a sentence having a minimum term of greater than 10 years. As we recently stated in a similar case involving the imposition of a greater maximum term of imprisonment after the vacatur of an original sentence which was illegal: "[u]nlike 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 [ 474 U.S. 951]; 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)" (People v Fuller, 134 A.D.2d 278, 279, lv denied 70 N.Y.2d 931). Therefore, in this case, the court was not barred from imposing the maximum term of 25 years, which then required it to impose the statutorily mandated minimum term of 12 1/2 years (see, Penal Law § 70.04, [3] [a]; [4]).
We considered the defendant's challenge to his adjudication as a predicate violent felony offender on his prior appeal and found it to be without merit (see, People v Taylor, supra, at 854).
The points raised in the defendant's supplemental pro se brief have been considered and we find them to be without merit. Thompson, J.P., Lawrence, Harwood and Balletta, JJ., concur.