| People v Newman |
| 2017 NY Slip Op 06086 [153 AD3d 639] |
| August 9, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dante Newman, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai and William Kastin of counsel), forappellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and JillOziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered July 21, 2015, convicting him of assault in the first degree and attempted robbery inthe first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as somodified, the judgment is affirmed, and the matter is remitted to the Supreme Court, KingsCounty, for further proceedings consistent herewith.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond areasonable doubt that the defendant acted with intent to cause serious physical injury (seePenal Law § 120.10 [1]; People v France, 120 AD3d 1357 [2014]). The defendant'scontention that the evidence was legally insufficient to support the convictions because thetestimony of his accomplice was not sufficiently corroborated is unpreserved for appellate review(see People v Echols, 144 AD3d702 [2016]; People v Weaver,118 AD3d 1270 [2014]; People vRivera, 74 AD3d 993 [2010]). In any event, viewing the evidence in the light mostfavorable to the prosecution, we find that the accomplice's testimony was sufficientlycorroborated (see CPL 60.22 [1]; People v Reome, 15 NY3d 188 [2010]; People v Echols, 144 AD3d 702[2016]; People v Paige, 134 AD3d1048 [2015]). Moreover, upon the exercise of our factual review power (see CPL470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
Certain remarks made by the sentencing court demonstrate that it improperly considered acrime of which the defendant was acquitted as a basis for sentencing. Accordingly, the mattermust be remitted to the Supreme Court, Kings County, for resentencing (see People v Brown, 113 AD3d785 [2014]; People v Flowers,97 AD3d 693 [2012]; People vGrant, 94 AD3d 1139 [2012]). Further, since the People failed to establish that the actsunderlying the conviction of assault in the first degree were separate and distinct from the actsunderlying the conviction of attempted robbery in the first degree, the sentences imposed onremittal are to run concurrently (seePeople v Henderson, 148 AD3d 929 [2017]; People v Kaye, 137 AD3d 938 [2016]; People v Grant, 94 AD3d 1139[2012]; cf. People v Brahney, 29NY3d 10 [2017]).
[*2] The defendant's remainingcontentions either are without merit or do not require a new trial. Dillon, J.P., Austin,Hinds-Radix and LaSalle, JJ., concur.