Filed Date： 11/5/2001
Status： Precedential
Modified Date： 11/1/2024
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered October 28, 1999, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Bárbaro, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing by a different Justice.
The defendant’s contention that the court erred in determining that a pretrial identification by an eyewitness was confirmatory is unpreserved for appellate review (see, People v Williams, 85 NY2d 868; People v Terry, 224 AD2d 202), and we decline to exercise our interest of justice jurisdiction to review his contention (see, People v Ramsey, 288 AD2d 240 [decided herewith]).
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 the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).
The matter must be remitted to the Supreme Court, Kings County, however, for resentencing before a different Justice. In the codefendant’s appeal (People v Ramsey, supra), we concluded that the remarks by the sentencing court demonstrated that it improperly considered crimes of which the codefendant was acquitted as a basis for sentencing (see, People v Santiago, 277 AD2d 258; People v Grant, 191 AD2d 297). The sentencing