People v. Newman

• Decision Date: 09 August 2017
• Citation: 57 N.Y.S.3d 412 (Mem),153 A.D.3d 639
• Parties: The PEOPLE, etc., respondent, v. Dante NEWMAN, appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 639

57 N.Y.S.3d 412 (Mem)

The PEOPLE, etc., respondent,

v.Dante NEWMAN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 9, 2017.

Lynn W.L. Fahey, New York, NY (Nao Terai and William Kastin of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jill Oziemblewski 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 in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

Viewing the evidence in the light most favorable to the prosecution(seePeople v. Contes,60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant acted with intent to cause serious physical injury (seePenal Law § 120.10[1];People v. France,120 A.D.3d 1357, 992 N.Y.S.2d 339 ).The defendant's contention that the evidence was legally insufficient to support the convictions because the testimony of his accomplice was not sufficiently corroborated is unpreserved for appellate review (seePeople v. Echols,144 A.D.3d 702, 40 N.Y.S.3d 186;People v. Weaver,118 A.D.3d 1270, 988 N.Y.S.2d 346;People v. Rivera,74 A.D.3d 993, 904 N.Y.S.2d 449 ).In any event, viewing the evidence in the light most favorable to the prosecution, we find that the accomplice's testimony was sufficiently corroborated (seeCPL 60.22[1];People v. Reome,15 N.Y.3d 188, 906 N.Y.S.2d 788, 933 N.E.2d 186;People v. Echols,144 A.D.3d 702, 40 N.Y.S.3d 186;People v. Paige,134 A.D.3d 1048, 22 N.Y.S.3d 220 ).Moreover, upon the exercise of our factual review power (seeCPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (seePeople v. Romero,7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

Certain remarks made by the sentencing court demonstrate that it improperly considered a crime of which the defendant was acquitted as a basis for sentencing.Accordingly, the matter must be remitted to the Supreme Court, Kings County, for resentencing (seePeople v. Brown,113 A.D.3d 785, 978 N.Y.S.2d 862;People v. Flowers,97 A.D.3d 693, 947 N.Y.S.2d 886;People v. Grant,94 A.D.3d 1139, 942 N.Y.S.2d 223 ).Further, since the People failed to establish that the acts underlying the conviction of assault in the first degree were separate and distinct from the acts underlying the conviction of attempted robbery in the first degree, the sentences imposed on remittal are to run concurrently (seePeople v. Henderson,148 A.D.3d 929, 49 N.Y.S.3d 716;People v. Kaye,137 A.D.3d 938, 26 N.Y.S.3d 593;People v. Grant,94 A.D.3d 1139, 942 N.Y.S.2d 223;cf.People v. Brahney,29 N.Y.3d 10, 51 N.Y.S.3d...