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).
QUOTATION: "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.