Opinion
2012-07-11
The PEOPLE, etc., respondent, v. Immanuel FLOWERS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Kaye Scholer LLP [Gerald Derevyanny], of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant. 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 second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
Contrary to the defendant's contention, he was not deprived of his right to the effective assistance of counsel, since the record as a whole demonstrates that he received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;cf. People v. Cyrus, 48 A.D.3d 150, 159–161, 848 N.Y.S.2d 67).
However, the remarks of the sentencing court demonstrated that it improperly considered a crime that was dismissed at trial for lack of legally sufficient evidence as a basis for sentencing ( see People v. Grant, 94 A.D.3d 1139, 1141–1142, 942 N.Y.S.2d 223;People v. Harvey, 76 A.D.3d 605, 606, 905 N.Y.S.2d 514;People v. Pacquette, 73 A.D.3d 1088, 900 N.Y.S.2d 683,affd.17 N.Y.3d 87, 926 N.Y.S.2d 856, 950 N.E.2d 489;People v. Romero, 71 A.D.3d 795, 796, 896 N.Y.S.2d 417;People v. Schrader, 23 A.D.3d 585, 585–586, 806 N.Y.S.2d 613). Accordingly, the sentence must be vacated and the matter must be remitted to the Supreme Court, Kings County, for resentencing.