Opinion
2000-05781
Argued January 27, 2003.
March 31, 2003.
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]).
Lynn W. L. Fahey, New York, N.Y. (Jennifer K. Danburg and David Duncan of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Lisa Drury, and Colin Schafer of counsel), for respondent.
Before: NANCY E. SMITH, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, BARRY A. COZIER, JJ.
DECISION ORDER
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 N.Y.2d 620), 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).
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 N.Y.2d 1047; People v. Reeder, 298 A.D.2d 468, lv denied 99 N.Y.2d 538; People v. Ramsey, 288 A.D.2d 240, 241; People v. Innis, 288 A.D.2d 236). 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.