People v. Schrader

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered August 6, 2003, convicting him of assault 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 County Court, Orange County, for resentencing by a different judge.

The sentencing court’s remarks demonstrated that it improperly considered crimes of which the defendant was acquitted as a basis for sentencing (see People v Reeder, 298 AD2d 468 [2002]; People v Innis, 288 AD2d 236 [2001]; People v Santiago, 277 AD2d 258 [2000]). Accordingly, the matter must be remitted to the County Court, Orange County, for resentencing before a different judge. Prudenti, P.J., S. Miller, Spolzino and Dillon, JJ., concur.