People v. Flowers

97 A.D.3d 693, 947 N.Y.2d 886

Opinion

Contrary to the defendant’s contention, he was not deprived of his right to the effective assistance of counsel, since the record as a whole demonstrates that he received meaningful representation (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]; cf. People v Cyrus, 48 AD3d 150, 159-161 [2007]).

However, the remarks of the sentencing court demonstrated that it improperly considered a crime that was dismissed at trial for lack of legally sufficient evidence as a basis for sentencing (see People v Grant, 94 AD3d 1139, 1141-1142 [2012]; People v Harvey, 76 AD3d 605, 606 [2010]; People v Pacquette, 73 AD3d 1088 [2010], affd 17 NY3d 87 [2011]; People v Romero, 71 AD3d 795, 796 [2010]; People v Schrader, 23 AD3d 585, 585-586 [2005]). Accordingly, the sentence must be vacated and the matter must be remitted to the Supreme Court, Kings County, for resentencing. Dillon, J.P., Belen, Austin and Sgroi, JJ., concur.