The People of the State of New York, Respondent, v. Ellis Reeder, Appellant

The People of the State of New York, Respondent, v Ellis Reeder, Appellant. [748 NYS2d 275] [MAJORITY] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered July 15, 1999, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in. the third degree, upon a jury verdict, and sentencing him to concurrent determinate terms of 15 years imprisonment for criminal possession of a weapon in the second degree and seven years imprisonment for criminal possession of a weapon in the third degree. 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. Contrary to the defendant’s contention, the Supreme Court’s Sandoval ruling was a provident exercise of discretion (see People v Walker, 83 NY2d 455; People v Sandoval, 34 NY2d 371; People v Cruz, 176 AD2d 751). However, we remit the matter to the Supreme Court, Kings County, for resentencing before a different justice. 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 Innis, 288 AD2d 236; People v Santiago, 277 AD2d 258). Feuerstein, J.P., Smith, Goldstein and Luciano, JJ., concur.