People v. Reyes , 141 A.D.2d 433 ( 1988 )

Judgment of the Supreme Court, Bronx County (Richard Lee Price, J.), rendered July 15, 1987, convicting the defendant, after a jury trial, of criminal trespass in the second degree and sentencing him to a definite term of imprisonment of one year, affirmed.

The defendant was originally sentenced to a term of 10 months, and he moved to vacate the sentence since the maximum permissible was six months, pursuant to Penal Law § 70.15 (1). The prosecutor cross-moved to sentence the defendant as a second crime offender, which motion the court had originally denied. The cross motion was granted, and the defendant was sentenced to one year.

The dissent contends that vindictiveness played a part in the increase in the sentence. (See, North Carolina v Pearce, 395 US 711.) The point is misconceived. Once the second offender provision is invoked, the enhancement of sentence is proper. There is no constraint against it. (Cf., Matter of Kisloff v Covington, 141 AD2d 319.)

The defendant knew he could be subject to a second crime offender contention. (Cf., People v Green, 68 NY2d 151, 153.) Concur — Kupferman, J. P., Ross, Kassal and Smith, JJ.