People v. Wilson

303 A.D.2d 773, 757 N.Y.S.2d 446, 2003 N.Y. App. Div. LEXIS 3351

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rios, J.), rendered June 6, 2000, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Justice Smith has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing by a different justice.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The matter must be remitted to the Supreme Court, Queens County, however, for resentencing before a different justice. The remarks of the sentencing court demonstrated that, in imposing sentence, it improperly speculated and considered that the defendant had committed additional crimes (see People v Naranjo, 89 NY2d 1047 [1997]; People v Reeder, 298 AD2d 468 [2002], lv denied 99 NY2d 538 [2002]; People v Ramsey, 288 AD2d 240, 241 [2001]; People v Innis, 288 AD2d 236 [2001]). Moreover, the sentencing court’s remarks further indicate that it considered the fact that the defendant did not testify at the trial. Smith, J.P., S. Miller, Friedmann and Cozier, JJ., concur.