| People v Metellus |
| 2007 NY Slip Op 09607 [46 AD3d 578] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jackson Metellus, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, CharlesBalvin, and Jeanette Lifschitz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunlop,J.), rendered September 24, 2004, convicting him of robbery in the first degree and robbery in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the sentence imposed; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Queens County, for resentencing.
Contrary to the defendant's contention, viewing the evidence in the light most favorable tothe prosecution, and affording the prosecution the benefit of every favorable inference to bedrawn therefrom (see Jackson v Virginia, 443 US 307, 319 [1979]; People v Contes,60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633, 644-645 [2006]).
The defendant's claim that he was prejudiced by the sentencing court's inaccurate statementof facts at sentencing is unpreserved for appellate review (see CPL 470.05 [2]; Peoplev Gray, 86 NY2d 10, 19 [1995]). We nonetheless reach it in the interest of justice (seeCPL 470.15 [6]).[*2]
The evidence at trial was that the defendant and anaccomplice held up the complainant at gunpoint, snatched his necklace, and took money out ofhis pocket before fleeing the scene. There was no evidence that the defendant physicallyassaulted the complainant.
Notwithstanding the evidence, just prior to imposing sentence, the Supreme Court stated that"[t]he complainant in this case was not only robbed, but was brutally beaten." Because it appearsthat the court sentenced the defendant on the basis of materially untrue assumptions ormisinformation, the defendant was denied due process, and must be resentenced (see People vNaranjo, 89 NY2d 1047, 1049 [1997]). In light of our determination vacating the sentenceimposed, we express no view on whether the sentence was excessive.
The defendant's contention that he was deprived of a fair trial by certain of the prosecutor'scomments on summation is unpreserved for appellate review (see CPL 470.05 [2];People v Gray, 86 NY2d 10, 19 [1995]), and we decline to review it in the exercise of ourinterest of justice jurisdiction. The defendant's remaining contentions, including those raised inhis supplemental pro se brief, are without merit. Krausman, J.P., Fisher, Angiolillo and Balkin,JJ., concur.