| People v Harvey |
| 2010 NY Slip Op 06383 [76 AD3d 605] |
| August 10, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Harvey, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,Lisa M. White, and Yavar Bathaee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered September 10, 2008, convicting him of robbery in the second degree, upon a juryverdict, 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, Kings County, for resentencing.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of robbery in the second degree beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]). It was the jury's province to weigh the reliability of thecomplainant against that of alibi witnesses (see People v Calabria, 3 NY3d 80, 82 [2004]). It was reasonablefor the jury to credit the complainant's testimony identifying the defendant as one of theassailants and to reject the testimony of the defendant and his alibi witnesses.
However, the remarks of the sentencing court demonstrated that it improperly considered acrime of which the defendant was acquitted as a basis for sentencing (see People v Pacquette, 73 AD3d1088 [2010]; People vRomero, 71 AD3d 795, 796 [2010]; People v Schrader, 23 AD3d 585 [2005]; People vErrington, 307 AD2d 325 [2003]; People v Smith, 305 AD2d 432 [2003]).Accordingly, the matter must be remitted to the Supreme Court, Kings County, for resentencing.Rivera, J.P., Florio, Angiolillo and Austin, JJ., concur.