Opinion
1999-06689
Submitted September 26, 2002.
October 15, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered July 15, 1999, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and sentencing him to concurrent determinate terms of 15 years imprisonment for criminal possession of a weapon in the second degree and 7 years imprisonment for criminal possession of a weapon in the third degree.
Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, DANIEL F. LUCIANO, JJ.
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.
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling was a provident exercise of discretion (see People v. Walker, 83 N.Y.2d 455; People v. Sandoval, 34 N.Y.2d 371; People v. Cruz, 176 A.D.2d 751).
However, we remit the matter to the Supreme Court, Kings County, for resentencing before 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. Innis, 288 A.D.2d 236; People v. Santiago, 277 A.D.2d 258).
FEUERSTEIN, J.P., SMITH, GOLDSTEIN and LUCIANO, JJ., concur.