Muldoon, Getz & Reston

Welcome to the law firm of Muldoon, Getz & Reston - Serving Rochester since 2003

Issues In NY Criminal Law--Vol. 2, #7©

Issue: Sentencing for a crime the defendant was not convicted of.

THERE are occasions when a court will impose a sentence even though the defendant was not convicted of that crime. Obviously improper, but it took an appeal to straighten it out. Consider these situations:

  • The jury did not render a verdict on a count in the accusatory instrument, therefore it's improper to sentence on it. People v. Hamlin, 153 AD2d 644, 544 NYS2d 859 (2d Dept 1989); see also, People v. Zohar, 158 Misc 2d 1028, 607 NYS2d 209 (App Term 1993 ) (bench trial).
  • Where the court clerk, in asking for the verdict, misstated the crime being charged. People v. Sanchez, 185 AD2d 367, 587 NYS2d 226 (2d Dept 1990).
  • It is improper to sentence a defendant on a count not contained in the accusatory instrument. People v. Robertson, 162 AD2d 953, 557 NYS2d 182 (4th Dept 1990).
  • A defendant may not be sentenced on a count that was not submitted to the jury. People v. Manzi, 134 AD2d 907, 521 NYS2d 607 (4th Dept 1987).

However, if the court omits to impose sentence on a valid conviction, the case will be remanded for re-sentencing. People v. Rodriguez, 184 AD2d 481, 585 NYS2d 429 (1st Dept 1992).

"The aphorism that a legislature's failure to enact a change is an expression of approval of the law as it stands is a patent fallacy." -- Robert E. Keeton, Venturing to Do Justice, p. 17.


Copyright© 1999-2008 by Gary Muldoon. All rights reserved.