Tuesday, June 27, 2006

Not the result Appellant was looking for

People v Thigpen, __ AD3d __ [available here]

Criminal defendants are allowed to appeal once as a matter of right--for the most part, if you got a conviction, you get an appeal. However, it is not always a good idea to avail oneself of that right. The Fourth Department's decision in People v Thigpen illustrates the point. The substantive issues raised by Mr. Thigpen's counsel on appeal were weak, and the Fourth Department rejected them in a few paragraphs. The real kick in the stomach for Mr. Thigpen comes in the last paragraph of the decision:

Finally, we conclude that the sentence of 3 1/2 to 7 years imprisonment is illegal inasmuch as defendant was sentenced as a second felony offender on two class B drug felonies, which in 2003 required a minimum indeterminate sentence of 4 1/2 to 9 years. "Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand". We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

(People v Thigpen, __ AD3d __.)

Ouch. I guarantee Mr. Thigpen did not expect to come out of his appeal with a longer sentence that he had going in.