| People v Francis |
| 2012 NY Slip Op 08152 [100 AD3d 1017] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Francis, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert,J.), rendered March 24, 2011, convicting him of robbery in the first degree (two counts), criminalpossession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree, 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 County Court, Westchester County, for resentencing before a different Judge inaccordance herewith.
The defendant contends that the County Court improperly considered materially untrueassumptions and charges of which he was acquitted as a basis for sentencing. We reach that issuein the interest of justice.
The remarks of the County Court demonstrate that, in imposing sentence, it improperlyspeculated that the defendant attempted to kidnap the complainant and intended to burglarize hisresidence. Since the court sentenced the defendant, in part, "on the basis of materially untrueassumptions or misinformation," the defendant was denied due process, and must be resentenced(People v Metellus, 46 AD3d578, 579 [2007]; see People v Naranjo, 89 NY2d 1047 [1997]; People vWilson, 303 AD2d 773 [2003]). Accordingly, we vacate the sentence and remit the matter tothe County Court, Westchester County, for resentencing before a different Judge.
The defendant's contention that the County Court improperly considered charges of which hewas acquitted as a basis for sentencing is without merit. Skelos, J.P., Angiolillo, Dickerson andHall, JJ., concur.