| People v Flowers |
| 2012 NY Slip Op 05545 [97 AD3d 693] |
| July 11, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Immanuel Flowers, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Kaye Scholer LLP [Gerald Derevyanny], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered December 7, 2009, convicting him of criminal possession of a weapon in the seconddegree, 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, Kings County, for resentencing.
Contrary to the defendant's contention, he was not deprived of his right to the effectiveassistance of counsel, since the record as a whole demonstrates that he received meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]; cf.People v Cyrus, 48 AD3d 150, 159-161 [2007]).
However, the remarks of the sentencing court demonstrated that it improperly considered acrime that was dismissed at trial for lack of legally sufficient evidence as a basis for sentencing(see People v Grant, 94 AD3d1139, 1141-1142 [2012]; People vHarvey, 76 AD3d 605, 606 [2010]; People v Pacquette, 73 AD3d 1088 [2010], affd 17 NY3d87 [2011]; People v Romero, 71AD3d 795, 796 [2010]; People vSchrader, 23 AD3d 585, 585-586 [2005]). Accordingly, the sentence must be vacatedand the matter must be remitted to the Supreme Court, Kings County, for resentencing. Dillon,J.P., Belen, Austin and Sgroi, JJ., concur.