Opinion
February 13, 1996
Appeal from the Supreme Court, Queens County (Thomas, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing before a different Justice.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
In determining the defendant's sentence, the court took into account the facts underlying a prior similar case, in which the defendant was acquitted. Based upon those facts, the court determined that the defendant had established a pattern of violent behavior. This was clearly improper and requires that the case be remitted for resentencing before a different Justice (see, People v. Coward, 100 A.D.2d 628). O'Brien, J.P., Copertino, Santucci and Krausman, JJ., concur.