People v. Fowler

67 A.D.3d 476, 886 N.Y.S.2d 885

Opinion

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered July 31, 2008, convicting defendant, after a jury trial, of rape in the second degree, and sentencing him, as a second felony offender, to a term of 3x/2 to 7 years, unanimously modified, as a matter of law, to the extent of remanding for resentencing, to include the filing of a predicate felony statement, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s determinations concerning credibility. The victim gave a plausible account of the incident that was corroborated by other evidence. Although, in performing weight of evidence review, we may consider the jury’s verdict on other counts (see People v Rayam, 94 NY2d 557, 563 n [2000]), we find that the jury’s mixed verdict does not warrant a different conclusion.

As the People concede, defendant is entitled to be resentenced because there is no record of any predicate felony statement or any proceeding to adjudicate defendant a second felony offender. Concur—Tom, J.P, Friedman, Nardelli, Buckley and Richter, JJ.