PEOPLE v. SCHRADER (2005)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Eric SCHRADER, appellant.

Decided: November 21, 2005

A. GAIL PRUDENTI, P.J., SONDRA MILLER, ROBERT A. SPOLZINO, and MARK C. DILLON, JJ.

John R. Lewis, Sleepy Hollow, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.

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 A.D.2d 468, 748 N.Y.S.2d 275; People v. Innis, 288 A.D.2d 236, 732 N.Y.S.2d 358; People v. Santiago, 277 A.D.2d 258, 715 N.Y.S.2d 73). Accordingly, the matter must be remitted to the County Court, Orange County, for resentencing before a different Judge.

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