The People, etc., respondent, v. Dean Pacquette, appellant. (2010)

Argued-April 19, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered November 12, 2008, 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 (Ingram, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.

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 Supreme Court, Kings County, for resentencing.

Contrary to the defendant's contention, any error in not suppressing his statements to law enforcement officers was harmless beyond a reasonable doubt since the evidence of the defendant's guilt, without reference to the alleged error, was overwhelming, and there is no reasonable possibility that the alleged error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237).

However, the remarks of the sentencing court demonstrated that it improperly considered the crime of which the defendant was acquitted as a basis for sentencing (see People v. Romero, 71 AD3d 795;  People v. Schrader, 23 AD3d 585, 585-586;  People v. Errington, 307 A.D.2d 325;  People v. Smith, 305 A.D.2d 432;  People v. Ramsay, 288 A.D.2d 240;  see also People v. Maula, 163 A.D.2d 180).   Accordingly, we vacate the sentence and remit the matter to the Supreme Court, Kings County, for resentencing.

In light of the foregoing, the defendant's remaining contention is academic.

SKELOS, J.P., SANTUCCI, LEVENTHAL and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court