People v. Newman , 153 A.D.3d 640 ( 2017 )

People v Newman (2017 NY Slip Op 06087)

People v Newman

2017 NY Slip Op 06087

Decided on August 9, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 9, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.

2015-07646
(Ind. No. 3398/13)

[*1]The People of the State of New York, respondent,

v

Treyvon Newman, appellant.

Beverly Van Ness, New York, NY, for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.

DECISION & ORDER

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.

The defendant's contention that the evidence was legally insufficient with respect to the element of his intent to seriously injure the victim is without merit. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant shared an intent with his codefendant to cause serious physical injury (see People v Hooks, 148 AD3d 930). Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633; People v Hooks, 148 AD3d 930).

The Supreme Court erred in imposing consecutive sentences and in considering a crime of which the defendant was acquitted as a basis for sentencing (see People v Newman, _____ AD3d _____ [Appellate Division Docket No. 2015-07005; decided herewith]). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for resentencing, and the sentences imposed on remittal are to run concurrently.

DILLON, J.P., AUSTIN, HINDS-RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court