People v. Errington

307 A.D.2d 325, 762 N.Y.S.2d 524

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 2003
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered November 3, 2000, convicting him of robbery in the second degree, upon a jury verdict, and sentencing him to a determinate term of 15 years imprisonment.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing by a different Justice.

The sentencing court’s remarks demonstrated that it improperly considered crimes of which the defendant was acquitted as a basis for sentencing (see People v Reeder, 298 AD2d 468 [2002]; People v Innis, 288 AD2d 236 [2001]; People v Santiago, 277 AD2d 258 [2000]). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for resentencing before a different Justice.

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Santucci, J.P., McGinity, Townes and Mastro, JJ., concur.