Aug 15, 2020 3 min read

Keith Rosario appealed a sentence to state Superior Court and won.

The appellate court ordered in April that he be resentenced.

He could have ended up with the same amount of prison time or, perhaps, less.

Not so.

When Rosario returned for what was actually a third round, appearing Friday in Washington County Court via video from the State Correctional Institution at Albion, Erie County, he found that he’d be serving even more time behind bars.

Judge John DiSalle had originally in 2015 sentenced Rosario to 2½ to 5 years incarceration for carrying a firearm without a license and probation for two felonies: delivery of cocaine and delivery of marijuana.

He was paroled, but within four months of his release from custody, he was charged with attempted homicide, aggravated assault and other counts in connection with a botched execution near Washington.

The prosecution alleged that Rosario had violated the terms of his parole and probation, revoking them. And in February 2019, after Rosario’s conviction on charges of kidnapping and attempted homicide, DiSalle resentenced him on the prior drugs and firearm charge.

The judge revoked the balance of Rosario’s sentence on the unlicensed firearm charge subject to the action of the state Board of Probation and Parole. For the cocaine trafficking charge, DiSalle sentenced Rosario to 5 to 10 years’ imprisonment, and for the marijuana charge, consecutive probation for 5 years.

Rosario’s attorney, Herbert Terrell, appealed the resentencing to state Superior Court, which found DiSalle abused his discretion by not placing on the record the reasons for imposing the penalty; failing to order a pre-sentence investigation which would have revealed Rosario’s background, and other factors; and not determining if the defendant was eligible for the Recidivism Risk Reduction Incentive program.

Deputy District Attorney Jason Walsh submitted to DiSalle on Friday the pre-sentence investigation Judge Valarie Costanzo had ordered in 2019 before sentencing Rosario to 35½ to 90 years in prison for the kidnapping episode and attempted homicide near a lake outside Washington.

“There’s a bullet in the victim’s head,” Walsh told the judge.

“I didn’t say a gun wasn’t used,” Terrell replied. “Can you convince me of a motive?”

Rosario is appealing as a pauper his convictions by a jury in the attempted homicide-kidnapping case. Representing him is Washington attorney John E. Egers Jr. The case has not yet been argued.

Walsh also presented evidence of Rosario’s alleged misconduct while incarcerated, which Rosario disputed as being “informal” infractions.

Despite Rosario’s previous guilty pleas to criminal charges filed in Washington County Court, DiSalle admonished the convicted felon for not accepting responsibility for his conduct.

DiSalle resentenced Rosario as the appellate court required, again stating the 5- to- 10-year penalty. But the judge replaced the probationary sentence for the marijuana trafficking charge with 2 to 5 years’ imprisonment.

“Like I said, I have a habeas corpus put in,” Rosario said to the judge. “We’ll see what happens, sir.”