In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was held not to be presumptively vindictive.

The Young Court held that in determining whether the presumption of vindictiveness applies to a sentence imposed after a retrial,where a defendant receives a lesser over-all sentence following retrial, but a greater sentence on an individual count

the presumption arises only if the circumstances evince a reasonable likelihood that the greater sentence on the individual count was the result of vindictiveness (citations omitted). While trial courts in New York are required to impose discrete sentences for each individual count (see, CPL 380.20), we cannot ignore the reality that, in cases involving multiple counts, trial courts may view the individual sentences as part of an integrated whole. A trial court fashions its sentence on a “delicate balancing” of factors, including the defendant's background, criminal history and prospects for rehabilitation, in order to achieve a sentence that is appropriate both for the defendant and for the specific crimes of which the defendant was convicted(Citation omitted. Where, as here, a trial court adjusts the original sentence after retrial in order to reflect that balance, a presumption of vindictiveness will not arise.

Citing Young, the Appellate Division, Fourth Department, in People v Rogers (2008 NY Slip Op 08827 [4th Dept 11/14/08], found that the presumption of vindictiveness applied under facts very similar to those in Young.

Following his first trial, Mr. Rogers was sentenced to a determinate term of imprisonment of 20 years on the robbery count and an indeterminate term of imprisonment of 20 years to life on the murder count, but he was sentenced to a determinate term of imprisonment of 25 years on the robbery count following the retrial. The Court held that

"The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed" (People v Cahill, 46 AD3d 1455, 1456; see generally People v Young, 94 NY2d 171, 176-177, rearg denied 94 NY2d 876; People v Van Pelt, 76 NY2d 156, 159-160), and a determinate sentence of 25 years is of course more severe than one of 20 years. Other factors that give rise to a presumption of vindictiveness are that the court imposed a greater sentence following the retrial despite the absence of any new information concerning defendant (see Van Pelt, 76 NY2d at 161), and, although defendant was acquitted of the murder count, the court stated at sentencing that it "felt constrained to impose the sentence because a death was involved." We further conclude that "[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court's imposition of a sentence greater than that imposed after the initial conviction" (People v Jenkins, 38 AD3d 566, 567-568, lv denied 8 NY3d 986).

It is difficult to discern which facts distinguish Rogers from Young.