Opinion
2003-07357.
November 21, 2005.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 6, 2003, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
John R. Lewis, Sleepy Hollow, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.
Before: Prudenti, P.J., S. Miller, Spolzino and Dillon, JJ., concur.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for resentencing by a different judge.
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. Reeder, 298 AD2d 468; People v. Innis, 288 AD2d 236; People v. Santiago, 277 AD2d 258). Accordingly, the matter must be remitted to the County Court, Orange County, for resentencing before a different judge.