PEOPLE v. WALKER (2005)

Judgment, Supreme Court, Bronx County (William C. Donnino, J.), rendered August 6, 2001, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him to an aggregate term of 4 1/212 to 9 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the sentences and remanding for resentencing, and otherwise affirmed.

The verdict was based upon legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning identification and credibility (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There was extensive evidence of defendant's guilt, including evidence that he was found in possession of prerecorded buy money and that he discarded a large quantity of additional drugs.

The People did not file a predicate felony statement and the court never adjudicated defendant a second felony offender.   Under the circumstances of the case, we conclude that a remand for resentencing is warranted in the interest of justice (compare People v. Bouyea, 64 N.Y.2d 1140, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985] ).