People v. Pacquette

—Appeal by the defendant from a resentence of the Supreme Court, Kings County (Marrus, J.), imposed July 21, 2010, upon his conviction of criminal possession of a weapon in the second degree, upon a jury verdict, after remittitur from this Court for resentencing (see People v Pacquette, 73 AD3d 1088 [2010], affd 17 NY3d 87 [2011]), the resentence being a determinate term of imprisonment of 15 years followed by a five-year period of postrelease supervision.

Ordered that the resentence is modified, as a matter of discretion in the interest of justice, by reducing the resentence imposed from a determinate term of imprisonment of 15 years followed by a five-year period of postrelease supervision to a determinate term of imprisonment of 10 years followed by a five-year period of postrelease supervision.

The defendant’s contention that the Supreme Court improperly considered a charge of which he was acquitted as a basis for imposing resentence is without merit (see People v Khan, 89 AD3d 750, 751 [2011]; People v Morgan, 27 AD3d 579, 580 [2006]; People v Robinson, 250 AD2d 629 [1998]). However, under the circumstances of this case, the resentence imposed was excessive to the extent indicated (see People v Suitte, 90 AD2d 80 [1982]).

Mastro, J.P., Chambers, Hall and Lott, JJ., concur.