People v. Phong Le ( 2003 )

Judge NEY

dissenting.

I dissent because I conclude the sentencing court improperly based defendant's aggravated sentences on acquitted conduct.

Here, two distinct criminal episodes occurred, and defendant was acquitted of participation in the second episode. However, the sentencing court concluded that "but for" defendant's conduct before and during the first episode, the second episode would not have occurred. The court then used the acquitted crimes to support defendant's sentences in the maximum aggravated range.

In my view, defendant thus received punishment for crimes of which he was acquitted by the jury. I consider this type of sentencing to be an abuse of discretion. See, eg., People v. Coward, 100 A.D.2d 628, 473 N.Y.S.2d 591, 593 (N.Y.App.Div.1984)(remanding for resentencing "in light of the sentencing court's remarks which apparently demonstrated that [it] had considered testimony relating to crimes for which defendant had been acquitted as a basis for sentencing").

Accordingly, I would remand the case for resentencing.