The People, Respondent,v.Gunther J. Flinn, Appellant.

Brief

N.Y.January 14, 2014

To be argued by Martin P. McCarthy, II Estimated time for argument: 10 minutes C peourt of Ap als FOR THE STATE OF NEW YORK ________________________________ THE PEOPLE OF THE STATE OF NEW YORK Respondent, -versus- GUNTHER J. FLINN, Defendant-Appellant. _________________________________ Jefferson County Indictment No., 2006-434 Brief for the Defendant-Appellant MULDOON & GETZ Martin P. McCarthy, II, of counsel Attorneys for Defendant-Appellant 144 Exchange Boulevard, Suite 402 Rochester, New York 14614 (585) 262-5130 Brief completed March 1, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Point 1 The defendant’s right to be present at all material stages of the proceedings was violated when no express or implied waiver of his right to attend bench conferences occurred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Point 2 The defendant was unconstitutionally punished for exercising his right to a trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 -i- TABLE OF AUTHORITIES Constitution US Const Amend XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 NY Const Art I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18 Cases Bordenkircher v Hayes, 434 US 357 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 North Carolina v Pearce, 395 US 711, 726 (1969) . . . . . . . . . . . . . . . . . . . . . . . 18 People v Anderson, 16 NY2d 282 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v Antommarchi, 80 NY2d 247 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v Davidson, 89 NY2d 881 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v Elliot, 299 AD2d 731 (3d Dept 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v Flinn, 20 NY3d 986 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v Flinn, 98 AD3d 1262 (4th Dept 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v Flinn, 60 AD3d 1304 (4th Dept 2009) . . . . . . . . . . . . . . . . . . . . 2, 19, 20 People v Inskeep, 272 AD2d 966 (4th Dept 2000) . . . . . . . . . . . . . . . . . . . . . . 1, 13 People v Keen, 94 NY2d 533 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v Lucious, 269 AD2d 766 (4th Dept 2000) . . . . . . . . . . . . . . . . . . . . . . . 15 People v Maher, 89 NY2d 318 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v McAdams, 22 AD3d 885 (3d Dept 2005) . . . . . . . . . . . . . . . . . . . 11, 12 People v Miller, 65 NY2d 502 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v Mitchell, 80 NY2d 519 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 People v Rogers, 56 AD3d 1173 (4th Dept 2008) . . . . . . . . . . . . . . . . . . . . . . . . 20 People v Sloan, 79 NY2d 386 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 -ii- People v Simmons, 29 AD3d 1024 (2d Dept 2006) . . . . . . . . . . . . . . . . . . . . . . 20 People v Sprowal, 84 NY2d 113 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v Turaine, 78 NY2d 871 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v Van Pelt, 76 NY2d 156 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 People v Vargas, 88 NY2d 363 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16 People v Velasco, 77 NY2d 469 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v Velasquez, 1 NY3d 44 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16 People v Williams, 15 NY3d 739 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 13 United States v Goodwin, 457 US 368 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Statutes and Codes Criminal Procedure Law § 260.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 § 470.05(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Secondary Authorities Preiser, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 260.20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 -iii- QUESTIONS PRESENTED Question #1: When the court fails to advise defendant of his right to be present at all material stages of the trial, can defense counsel waive the defendant's right to be present in defendant's absence? Answer of the Appellate Division: Citing its decision in People v Inskeep 272 AD2d 966 (4th Dept 2000), the Appellate Division held that “defendant’s failure to attend sidebar conferences after being fully informed of the right to do so constitutes a valid waiver of that right.” Question #2: When defendant rejected an offer of 6 years imprisonment and was previously successful on appeal in challenging a prior plea, did the trial court unconstitutionally punish defendant for exercising his right to a trial by sentencing him to a consecutive, aggregate sentence of 15 years imprisonment? Answer of the Appellate Division: Defendant did not preserve the contention and otherwise held that “because there is no evidence in the record that the court was motivated by retaliation or vindictiveness in sentencing defendant following the trial,” the contention lacked merit. PRELIMINARY STATEMENT Gunther J. Flinn, with no criminal record, was charged in Jefferson County Court with several felonies as well as two misdemeanors and two violations, ranging from Attempted Murder 2nd degree to Harassment 2nd degree. In 2006, he pleaded guilty to Attempted Murder 2nd degree before the Honorable Kim H. Martusewicz. His guilty plea and conviction were vacated by the Appellate Division, Fourth Department due to coercive statements by the trial judge. Specifically, the Appellate Division found that At the plea proceeding, the court stated that it would treat defendant "very differently as far as the sentence is concerned" if he exercised his right to a trial and that his sentence after trial would be "nothing like the sentence that [he] would get if [he] stood up and accepted [his] responsibility." The court further stated that defendant was "going to be sentenced [to] substantially longer than" the agreed-upon term of six years of imprisonment if he exercised his right to a trial (People v Flinn, 60 AD3d 1304, 1305 (4th Dept 2009)). Upon the Fourth Department vacating the conviction, the case was proceeded to jury trial and defendant was convicted. Judge Martusewicz's aggregate prison sentence after trial was 15 years, 2½ times what was -2- originally imposed and had been promised again should he have pleaded guilty and not gone to trial [A 8, 54]. The case was again appealed to the Appellate Division, Fourth Department, which affirmed the conviction, holding, inter alia, that (1) defendant’s right to be present at sidebar conferences was not violated “because the defendant’s failure to attend sidebar conferences after being fully informed of the right to do so constitutes a valid waiver of that right,” and (2) defendant was not unconstitutionally punished for exercising his right to trial because there is no evidence in the record that the court was motivated by retaliation or vindictiveness in sentencing defendant following the trial” (People v Flinn, 98 AD3d 1262, 1262-1263 (4th Dept 2012)) [A 5-6]. The Honorable Victoria A. Graffeo granted leave to appeal on December 20, 2012 (People v Flinn, 20 NY3d 986 (2012)) [A 3]. Jurisdiction This Court has jurisdiction pursuant to CPL § 450.90(1) to entertain this appeal and review the issues raised. Defendant’s right to be present at all -3- material stages of the trial (CPL § 260.20) does not require preservation (see People v Dokes, 79 NY2d 656, 662 (1992)). This issue was fully briefed at the Appellate Division, which ruled against defendant. During sentencing, trial counsel, specifically citing pre-trial offers of a more lenient sentencing, expressly requested that the trial court not punish defendant for exercising his right to a trial, thereby preserving the issue on appeal (CPL § 470.05(2)). It was fully briefed at the Appellate Division, which ruled against defendant. STATEMENT OF FACTS Gunther Flinn was charged in Jefferson County with Attempted Murder 2nd degree, Assault 1st (three counts), Intimidating a Victim or a Witness 1st (two counts), Assault 2nd (two counts), Obstructing Governmental Administration 2nd, Resisting Arrest, Harassment 2nd, and Disorderly Conduct. The date of the charged offenses was July 9, 2006 [A 8]. Defendant’s trial began with jury selection. Before jury selection, the trial judge held a conference in chambers with the prosecutor, defendant and his defense attorney [A 10]. During this conference, the judge never informed -4- defendant that he had a right to attend bench conferences; instead, the judge extended an invitation for the defendant to attend: All right. Thank you. So this will be the first 18 people that we’ll see when we go out there. If there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them, I will leave that up to defense counsel and the defendant as to whether or not he wants to get up and attend any of those conference [A 12-13] When the court began taking bench conferences for prospective jurors who would have medical reasons not to serve on the jury, the court invited only counsel to the bench [A 14], and outside defendant’s presence, the following discussion took place: [defense counsel] Your Honor, may I just put one thing on the record. Mr. Flinn is remaining at counsel table. I have discussed with him that he has the right to come up here during these discussions at the bench, and he has waived that right. [judge] All right. Thank you. [defense counsel] I assume that would be without prejudice to accompany us? [judge] He can change his mind any time [A 16]. To the extent trial counsel’s statement operated as a waiver of defendant’s right to be present, the trial court never put counsel's waiver on the record, -5- nor was counsel's waiver reiterated in defendant's presence. After handling several medical excuse bench conferences, the trial judge conducted a number of bench conferences concerning juror bias. A large number of jurors – 16 in all – were questioned about potential bias outside defendant’s presence [A 17-41, 48-60]. Each time, only the attorneys were invited to the bench. Out of those 16 prospective jurors, 7 were peremptorily challenged by the prosecution, 2 were excused for cause, and 1 was not challenged by either party but was not seated on the jury [A 40-47, 61]. The remaining 6 jurors, who were questioned outside defendant’s presence, were either peremptorily challenged by the defense or else became seated jurors: • prospective juror D.M. – questioned outside defendant’s presence, peremptorily challenged by defense counsel [A 19-21, 43]; • prospective juror E.M. – questioned outside defendant’s presence, peremptorily challenged by defense counsel [A 21-23, 43]; • prospective juror P.D. – questioned outside defendant’s presence, seated as a juror [A 23-24, 45]; • prospective juror M.N. – questioned outside defendant’s the presence, seated as a juror [A 25-27, 45]; • prospective juror T.S. – questioned outside defendant’s presence, -6- seated as a juror [A 31-33, 45]; • prospective juror M.M. (referred to as “Juror # 16") – questioned outside the defendant’s, peremptorily challenged by defense counsel [A 47, 51-53, 61]. Verdict The defendant was convicted of Attempted Murder 2nd degree, Assault 1st, Intimidating a Victim or a Witness 1st (two counts), Assault 2nd, Obstructing Governmental Administration 2nd, Resisting Arrest, Harassment 2nd and Disorderly Conduct [A 8]. Sentencing The defendant was sentenced to concurrent determinate terms of 13 years, with 5 years post-release supervision for Attempted Murder 2nd, Assault 1st, and two counts of Intimidating a Witness 1st, and a consecutive determinate term of 2 years, with 3 years of post-release supervision for the Assault 2nd conviction. The aggregate prison sentence after trial was more than double the six-year prison sentence that had been previously imposed: 15 years imprisonment, post-release supervision, as well as restitution of $14,636.01 [A 8, 90-91]. -7- ARGUMENT Point 1 Defendant’s right to be present at all material stages of the proceedings was violated when no express or implied waiver of his right to attend bench conferences occurred A. Introduction A defendant has a “fundamental right to be present with counsel at all material stages of [his] trial" (People v Sloan, 79 NY2d 386, 391 (1992); People v Turaine, 78 NY2d 871, 872 (1991)). The defendant’s right to be present is found in CPL § 260.20, and has been a longstanding right for criminal defendants in New York.1 The purposes of the statute are twofold: (1) to prevent the ancient evil of secret trials; and (2) to guarantee the defendant’s right to be present at all important stages of his trial and those purposes are founded upon the guarantee of due process under Article 1, section 6 of the New York Constitution (see People v Anderson, 16 NY2d 282, 286-287 (1965) (construing Section 356 of the Code of Criminal Procedure)). 1 CPL § 260.20 is derived from its predecessor, Section 356 of the Code of Criminal Procedure (1909). Previous versions can be found in Section 356 of the Code of Criminal Procedure (1889), Section 314 of the Field Codes (1850) and 2 R. S. 734, § 13 (1829). -8- In People v Sloan and People v Velasco 77 NY2d 469 (1991), the Court had to determine whether the defendant had a fundamental right to be present during different aspects of impaneling a jury; in Velasco, the questioning concerned juror disqualification by the court based upon physical impairment, family obligations and work commitments, while in Sloan, the questioning involved the merits of the case and juror bias. In Velasco, the Court held that the defendant did not have a right to be present because his presence did not have a substantial effect on his ability to defend the case (People v Velasco, 77 NY2d at 472) and reached the opposite conclusion in Sloan because: Defendants' presence at the questioning on such matters and the resultant opportunity for them to assess the jurors' facial expressions, demeanor and other subliminal responses as well as the manner and tone of their verbal replies so as to detect any indication of bias or hostility, could have been critical in making proper determinations in the important and sensitive matters relating to challenges for cause and peremptories (People v Sloan, 79 NY2d at 392). In People v Antommarchi, the Court again addressed questioning of potential jurors about bias outside defendant’s presence and held that the trial -9- court may not “explore prospective jurors' backgrounds and their ability to weigh the evidence objectively unless defendant is present" (People v Antommarchi, 80 NY2d 247, 250 (1992)). In its holding the Court condemned a common trial court practice of actively soliciting juror reservations and bias in defendant’s absence (see People v Mitchell, 80 NY2d 519, 525 (1992); Preiser, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 260.20). B. Waiver A defendant’s waiver of the right to be present must be “voluntary, knowing and intelligent” (People v Vargas, 88 NY2d 363, 375-376 (1996)). This Court has recognized that waiver may occur explicitly (see People v Keen, 94 NY2d 533, 538-539 (2000)) or implicitly, but only if a defendant fails to attend bench conferences after being informed of his right to do so by the trial court (see People v Williams, 15 NY3d 739 (2012)). An express waiver may be accomplished through the defendant’s attorney (see People v Keen, 94 NY2d at 538-539), and can even be -10- accomplished outside defendant’s presence, so long as the waiver is then put on the record (People v Velasquez, 1 NY3d 44 (2003)). C. No implied waiver occurred It is clear from the record that the trial judge never explained the defendant’s right to be present during bench conferences concerning juror bias. In fact, the trial judge never told the defendant that he had a “right” to attend bench conferences. Instead, the trial judge merely extended an invitation to attend some bench conferences: All right. Thank you. So this will be the first 18 people that we’ll see when we go out there. If there are any conferences at the bench, I just remind everyone the defendant is welcome to attend them, I will leave that up to defense counsel and the defendant as to whether or not he wants to get up and attend any of those conference [A–]. Indicating that a defendant is “welcome” to attend bench conferences is not the same as informing him that he has the right to attend. The trial court’s general invitation to attend sidebar conferences is similar to what occurred in People v McAdams 22 AD3d 885 (3d Dept 2005)). In McAdams, the -11- trial judge “indicated in a cursory fashion that defendant was welcome to join all sidebar conferences if he desired” (People v McAdams, 22 AD3d at 885). In reversing the conviction, the Third Department held that the trial court’s “comment regarding defendant’s right to be present at all sidebars did not sufficiently articulate the substance of the Antommarchi right” (People v McAdams, 22 AD3d at 886). The trial court’s welcoming defendant to attend bench conferences also falls short of what occurred in People v Williams 15 NY3d 739 (2012). In Williams, the Court found an implied waiver when defense counsel stated during a pretrial suppression hearing that he had described defendant's Antommarchi rights to his client and the trial judge immediately followed up by telling defendant that “if we ever have any sidebars or if at any time I'm talking to both of the attorneys, you have an absolute right to be present at that time” (People v Williams, 15 NY3d at 741). In this case, the trial court never informed defendant he had “the absolute right” to attend bench conference and, after the trial court’s initial invitation to the defendant stating he was “welcome” to attend bench -12- conferences, the trial court never extended such an invitation again (cf People v Williams, 15 NY3d at 741 (trial judge repeatedly reminded the defendant that he was free to attend conferences)). Instead the court’s invitation was extended only to the attorneys (see People v Maher, 89 NY2d 318, 322 (1996) (defendant’s Antommarchi rights were violated and defendant was improperly excluded when court instructed jurors that if there were an issue of bias, the juror could “come up to the bench where you can explain to me here in the presence of the two attorneys”)) [A 17-39, 48-60]. Citing to its decision in People v Inskeep 272 AD2d 966 (4th Dept 2000), the Fourth Department affirmed the defendant’s conviction and held that “the defendant’s failure to attend sidebar conferences after being fully informed to do so constitutes a valid waiver” [A 5]. The Fourth Department’s reliance on its decision is Inskeep is misplaced because in Inskeep, the record established that “before jury selection commenced, County Court informed defendant that he had the right to be present at sidebar conferences” (People v Inskeep, 272 AD2d at 966). In this case, the court never advised the defendant of his “right” to attend bench conferences, making this case distinguishable from -13- Inskeep. Based upon these facts, no implied waiver of the defendant’s Antommarchi rights occurred. D. Any express waiver made by trial counsel was invalid The only other discussion of defendant’s right to be present occurred when the court invited prospective jurors to come up to the bench to discuss serious personal medical issues or personal problems that would prevent the juror from serving on the jury [A 14]. Trial counsel and the prosecutor approached the bench and the following exchange took place outside the defendant’s presence: [defense counsel] Your Honor, may I just put one thing on the record. Mr. Flinn is remaining at counsel table. I have discussed with him that he has the right to come up here during these discussions at the bench, and he has waived that right. [judge] All right. Thank you. [defense counsel] I assume that would be without prejudice to accompany us? [judge] He can change his mind any time [A 16]. -14- Given that defense counsel made this statement during a discussion of a juror’s “serious medical issues” – a bench conference that a defendant has no legal right to attend (see People v Sprowal, 84 NY2d 113, 117 (1994)) – defense counsel’s statement can be construed as nothing more than waiving defendant’s right to attend a bench conference he otherwise had no right to attend. In a similar case, the Third Department held that in the absence of the trial court’s explanation of the defendant’s Antommarchi right, trial counsel’s waiver of the defendant’s “right to be present at sidebar legal discussions” did not encompass interviews of prospective jurors concerning juror bias (People v Elliot, 299 AD2d 731, 734 (3d Dept 2002) (emphasis in original)). Even if trial counsel’s statement, made outside defendant’s presence at the bench conference, can be construed as an effective waiver of defendant’s Antommarchi right, the record is clear that it occurred when he was absent [A 16], making any waiver ineffective (People v Lucious, 269 AD2d 766 (4th Dept 2000)). Nor was this “waiver” ever put on the record in defendant’s presence (cf People v Velasquez, 1 NY3d at 49 (trial counsel’s Antommarchi waiver at a bench conference where defendant was absent was effective because it was -15- restated on the record in defendant’s presence). Velasquez represents the outer limits of an explicit Antommarchi waiver made by trial counsel – the waiver, which occurred at the bench outside the presence of the defendant, was only valid because it was later put on the record in defendant’s presence. Because an effective Antommarchi waiver must be “voluntary, knowing and intelligent” (People v Vargas, 88 NY2d 363, 375-376 (1996) [emphasis added]), the defendant in Velasquez could not say that he did not know that his Antommarchi rights were waived once the trial judge announced the waiver in his presence. Here, even if trial counsel’s statement to the judge at the bench could be construed as an Antommarchi waiver, it was not effective because it was not reiterated in the defendant’s presence. E. The error was prejudicial and reversal is required Excluding a defendant from sidebar discussions concerning potential juror bias constitutes reversible error where the prospective juror is either seated on the jury or peremptorily challenged by defense counsel (People v -16- Davidson, 89 NY2d 881, 883 (1996)). In this case, a large number of jurors – 16 in all – were questioned about potential bias outside the defendant’s presence [A 17-39, 48-60]. Out of those 16 prospective jurors, 7 were peremptorily challenged by the prosecution, 2 were excused for cause and 1 was not challenged by either party but was not seated on the jury [A 40-43, 61]. The remaining 6 jurors, who were questioned outside defendant’s presence, were either peremptorily challenged by the defense or else became seated jurors [A 19-27, 31-33, 43, 45, 47, 51-53, 61]. The trial court committed reversible error when the defendant was excluded from sidebar discussions concerning potential bias of prospective jurors who were either seated or peremptorily challenged by defense counsel. The Court should reverse the defendant’s conviction and remand for a new trial. -17- Point 2 The defendant was unconstitutionally punished for exercising his right to a trial It is a well-settled principle that criminal defendants should not be penalized for exercising their right to appeal. "To punish a person because he has done what the law plainly allows him to do is a due process violation 'of the most basic sort' " (United States v Goodwin, 457 US 368, 372 (1982), quoting Bordenkircher v Hayes, 434 US 357, 363 (1978); US Const Amend XIV; see also NY Const Art I, § 6). In order to insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after retrials than were imposed after their initial convictions (see, People v Van Pelt, 76 NY2d 156 (1990)). In North Carolina v Pearce, the Supreme Court held that when a defendant is sentenced to a longer term after retrial, "the reasons for [the enhanced sentence] … must affirmatively appear" (North Carolina v Pearce, 395 US 711, 726 (1969)). Furthermore, "those reasons must be based on objective information concerning identifiable conduct on the part of the defendant -18- occurring after the time of the original sentencing proceeding (People v Van Pelt, 76 NY2d, at 159-160). Before trial, the defendant rejected an offer to plead guilty to Attempted Murder 2nd with a sentence of 6 years determinate and 5 years of post-release supervision [A 62-64]. This was the same plea offer that was extended on defendant’s first plea, which was reversed by defendant’s prior appeal (People v Flinn, 60 AD3d at 1305). Like the previous appeal, these plea negotiations and the trial court’s position again occurred in chambers and out of public view. After trial, trial counsel at sentencing urged the judge to not penalize defendant for exercising his right to trial [ST 18]. The trial judge displayed a particular animus towards the defendant, including making comments about defendant’s prior appeal and at sentencing, when he described the defendant’s attitude as “arrogant” [A 65, 89]. Despite trial counsel’s plea for the trial court to not punish defendant’s exercising his right to a jury trial, defendant received an aggregate determinate sentence of 15 years, which included a consecutive 2-year -19- determinate sentence and 3-year post-release supervision term for Assault 2nd [A 90]. This sentence was two and half times longer than the plea offer prior to trial. A disparity between a plea offer and after-trial sentence creates the inference of unconstitutionality (see People v Simmons, 29 AD3d 1024 (2d Dept 2006) (disparity between 8-year plea offer and 25-year sentence after trial raised inference of unconstitutionality). Likewise, a presumption of vindictiveness arises when a court imposes a greater sentence than the sentence imposed upon the previously reversed conviction (People v Rogers, 56 AD3d 1173 (4th Dept 2008)). There was nothing to justify the court’s increased sentencing after trial (see People v Miller, 65 NY2d 502 (1985)). Rather, what appears on the record is the trial judge’s insistence that the defendant “step up before trial and accept his responsibility” [A 63] (People v Flinn, 60 AD3d at 1305)). Based upon the foregoing, the defendant respectfully requests that the Court reduce the punitive sentence imposed in this case. -20- CONCLUSION For the reasons stated, the defendant’s right to be present at all material proceedings was violated, mandating reversal of the conviction. In the alternative, the Court should vacate the sentence imposed in this case. Dated: March 7, 2013 Respectfully submitted, MULDOON & GETZ By: ________________________ Martin P. McCarthy, II, Esq. Attorneys for Defendant-Appellant 144 Exchange Boulevard Suite 402 Rochester, New York 14614 (585) 262-5130 -21-