Memorandum. The order of the Appellate Division should be reversed and the proceedings remitted to Supreme Court, Bronx County, for resentence, which shall be limited to a maximum of three years, under whatever sentencing provision may be lawfully applicable.
While the resentence in the present case does not fall precisely under the formulation in North Carolina v. Pearce (395 U. S. 711) it is violative of the spirit and purpose of the reasoning in that case. The possibility of a resentence with a longer maximum term would discourage a prisoner from pursuing a collateral attack on his sentence, however benevolent the purpose of the resentence. It suffices that the prisoner was not responsible for the conditions which brought about, from his point of view, a more severe sentence. Absent postjudgment conduct by a prisoner meriting a more severe sentence, one should not be imposed.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.
Order reversed and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with memorandum herein.