Where the appellate court finds the sentence imposed to have been illegal and remits for vacatur or resentence, who gets to pick which relief is imposed? In People v Maliszewski (2009 NY Slip Op 6376, decided Sept 3, 2009), the Court of Appeals held that it was the sentencing court, not the defendant.

In 2006, County Court agreed that it would sentence Mr. Maliszewski to 2 to 4 years upon his conviction for burglary, if he paid restitution from a previous conviction. He failed to do so, and the Court imposed a term of 3 to 6 years, as it had promised at plea. On appeal, the Fourth Department reversed, finding that the enhancement was illegal. It remitted "to resentence defendant to an indeterminate term of incarceration of 2 to 4 years ... or to afford defendant the opportunity to withdraw his plea" (49 AD3d 1165). On remittur, defendant declined to request vacatur, and instead asked County Court for the 2 to 4 year sentence. The court declined that request, and resentenced him to the original (illegal) term of 3 to 6 years.

On appeal from resentence, the Fourth Department affirmed in a split decision. The majority held that it was not the defendant's option to pick his remedy, but up to the trial court to determine whether to offer vacatur or resentence to the legal sentence. Since the court offered vacatur and the defendant declined, it was free to re-impose the illegal sentence (60 AD3d 1435). The minority dissented on the grounds that "plain logic does not support an unencumbered remittal permiting the court to impose the enhanced sentence that we concluded was illegal."

Come to find out, plain logic is not so plain. The Court of Appeals decided that the sentencing court properly resentenced Mr. Maliszewski to the illegal sentence, since he was offered the chance to withdraw his plea and chose not to do so. Thus the old adage, no bad punishment goes unpunished (for the defendant).