Restitution as Part of Sentence and the Presumption Against Vindictiveness: People v. Powell (2025)

Introduction

People v. Powell (2025 NYSlipOp 01839) is a landmark Third Department decision addressing two key issues in post-retrial procedure: (1) the scope of a defendant’s right to conflict-free, effective assistance of counsel when appointed at statutory rates, and (2) the bounds of permissible sentencing enhancements—specifically restitution—after a successful appeal. Aaron F. Powell was originally convicted of first- and second-degree murder in Broome County in 2019, a conviction later reversed on appeal and remitted for retrial. At his retrial in January 2019, Powell was reconvicted on the same counts and again sentenced to life without parole. The County Court also imposed $139,231.87 in restitution to the victims’ families. Powell challenged both his conviction and the restitution order, arguing that (a) counsel’s on-the-record criticisms gave rise to an actual conflict and deprived him of effective assistance, and (b) imposing restitution after a successful appeal violated the due process–based presumption against vindictiveness.

Summary of the Judgment

The Third Department affirmed the conviction for first-degree murder, but vacated and dismissed the two second-degree counts as inclusory concurrent counts under Penal Law §§ 125.25(1) and 125.27(1)(a)(viii).
The court rejected Powell’s claim of ineffective assistance: trial counsel’s ill-considered comments about the strength of the People’s case and counsel’s desire to “avoid a slow guilty plea” were characterized as a potential rather than an actual conflict, and there was no showing that they operated on or bore a substantial relation to the defense.
Moreover, the record reflected vigorous advocacy—motions, cross-examination, openings and closings—and the Court of Appeals sealed counsel’s comments to prevent jury prejudice.
On the restitution challenge, the Third Department held that restitution is “part of the sentence imposed” under Penal Law § 60.27(1). Because Powell’s successful appeal and retrial led to a new restitution order when none was imposed at his initial sentencing, the presumption of vindictiveness arose. County Court failed to place any objective, post-sentencing conduct on the record to justify the enhanced sentence, so the restitution order was vacated.

Analysis

Precedents Cited

People v. Hines (228 AD3d 995 [3d Dept 2024], lv denied 42 NY3d 938 [2024]): Defines effective assistance as conflict-free representation devoted to the client’s interests. Distinguishes potential vs. actual conflict.
People v. Kendricks (226 AD3d 1150 [3d Dept 2024]): Reaffirms that reversal for potential conflicts requires proof that the conflict “operated on the defense.”
People v. Young (94 NY2d 171 [1999]): Establishes the presumption of vindictiveness when a defendant receives a harsher sentence on retrial after a successful appeal.
People v. Flowers (28 NY3d 536 [2016]): Confirms that sentencing enhancements must be supported by objective changes in the defendant’s conduct post-appeal.
People v. Brown (77 AD3d 1190 [3d Dept 2010]): Holds that failure to seek a sentencing enhancement (persistent felony offender designation) at the original sentence casts doubt on the legitimacy of imposing it on retrial.
People v. Jenkins (197 AD3d 927 [4th Dept 2021]): Authorizes vacation of inclusory concurrent counts under CPL 300.40(3)(b).

Legal Reasoning

1. Ineffective Assistance of Counsel
The Court applied the two-step test for conflicts: first, distinguishing potential from actual conflicts (Hines; Kendricks), then requiring demonstration that the conflict “operated on the defense” (Rubadue, Rubadue; Kuhn). Powell’s trial counsel had been retained and then converted to statutory assignment under County Law § 722-b. When counsel publicly declared the plea offer and opined on the strength of the People’s case outside the jury’s presence, the court sealed the record. No subsequent prejudice was shown. Counsel mounted a full defense strategy, and the defendant himself affirmed satisfaction with counsel’s performance on the record.

2. Restitution and Presumption Against Vindictiveness
Under United States v. Goodwin (457 US 368 [1982]), imposing a harsher sanction to penalize an appeal violates due process. New York courts apply this principle when retrial sentences exceed original ones (Young; Flowers). County Law and CPL 300.40 do not alter the substantive rule: restitution qualifies as “part of the sentence” (Penal Law § 60.27[1]). Because Powell’s retrial resulted in restitution where none had been imposed initially, the presumption of vindictiveness arose. To dispel that presumption, “reasons for the enhanced sentence must be placed on the record” and must reflect “objective information concerning identifiable conduct” post-initial sentencing (Brown; Martinez). County Court merely found that ordering restitution was not “vindictive” but failed to identify any post-sentencing conduct or changed circumstances attributable to Powell. The only material change—Powell’s receipt of funds from a personal injury action—was not due to Powell’s own wrongdoing and thus cannot justify overcoming the presumption (Diaz; Borges; Carroll). The People’s failure to seek restitution at the first sentencing further underscored the appearance of vindictiveness (Brown).

Impact

People v. Powell clarifies two important points for future prosecutions and appeals:

Trial Counsel Conduct: Ill-considered on-the-record comments by counsel may create only a potential conflict when made outside the jury’s presence and sealed. Absent proof of actual prejudice, convictions will stand.
Sentencing and Restitution after Retrial: Restitution is part of the sentence. Imposing it after a successful appeal gives rise to a presumption of vindictiveness. Courts must expressly place objective, defendant-attributable reasons on the record to rebut that presumption or risk vacatur of the restitution order.

Complex Concepts Simplified

Inclusory Concurrent Count: A lesser offense automatically subsumed by a greater offense in the same indictment. Convictions on both cannot stand; the lesser must be vacated.
Presumption of Vindictiveness: A legal safeguard preventing courts from retaliating against defendants for exercising appellate rights. Triggered when a retrial sentence is more severe than the original.
Potential vs. Actual Conflict: Potential conflicts exist in theory but do not impair defense unless they actually influence counsel’s representation or trial strategy.
Restitution as Part of Sentence: Monetary payments to victims ordered at sentencing, treated equivalently to incarceration or fines for purposes of appellate review and due process protections.

Conclusion

People v. Powell reinforces critical due process protections at two stages of criminal procedure. First, it underscores that defense counsel’s on-the-record missteps, if confined outside the jury’s hearing and sealed, do not necessarily undermine meaningful representation absent actual prejudice. Second, it affirms that restitution is inseparable from the sentencing package, so courts must avoid any appearance of punishing defendants for exercising appellate rights. By vacating the restitution order without disturbing the underlying conviction, the Third Department provides clear guidance: sentencing enhancements after retrial demand transparent, objective justification to overcome the presumption of vindictiveness. This decision will guide counsel, trial courts, and appellate panels in balancing victim restitution against the constitutional imperative not to penalize lawful appeals.