In People v. Van Pelt (186 AD2d 604, 588 NYS2d 397 [2d Dept 1992]) the defendant was tried a second time after his initial conviction was reversed by the Appellate Division. (People v. Van Pelt, 186 AD2d at 604.) The defendant's second jury trial, before a different judge, resulted in a conviction and the imposition of a higher sentence than originally imposed. (Id.) Finding that the increased sentence violated the Due Process Clause of the New York State Constitution and amounted to vindictive sentencing, the Court of Appeals remitted the case for resentencing. (People v. Van Pelt, 76 NY2d 156 [1990].) Upon remittitur, the sentencing court mistakenly assumed that it was bound by the sentencing order of the original judge in the case. Finding that the sentencing court had erroneously assumed that its resentencing was merely a ministerial function and that it had no discretion to depart from the original sentence in the case, the Appellate Division reversed, finding that "[u]nder these circumstances," the court failed to exercise its own independent discretion in determining the terms of the defendant's sentence. (People v. Van Pelt, 186 AD2d at 605.)