Opinion
2001-01969
Argued April 11, 2003.
May 5, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered February 26, 2001, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Andrew C. Fine, New York, N.Y. (Kristina Schwarz of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
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 pretrial identification procedures were not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833).
We remit the matter to the Supreme Court, Kings County, for resentencing before a different Justice. The remarks of the sentencing court 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, lv denied 98 N.Y.2d 772).
SANTUCCI, J.P., SMITH, McGINITY and SCHMIDT, JJ., concur.