PEOPLE v. PACQUETTE (2013)

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Marrus, J.), imposed July 21, 2010, upon his conviction of criminal possession of a weapon in the second degree, upon a jury verdict, after remittitur from this Court for resentencing (see People v. Pacquette, 73 AD3d 1088, affd 17 NY3d 87), the resentence being a determinate term of imprisonment of 15 years followed by a 5–year period of postrelease supervision.

ORDERED that the resentence is modified, as a matter of discretion in the interest of justice, by reducing the resentence imposed from a determinate term of imprisonment of 15 years followed by a 5–year period of postrelease supervision to a determinate term of imprisonment of 10 years followed by a 5–year period of postrelease supervision.

The defendant's contention that the Supreme Court improperly considered a charge of which he was acquitted as a basis for imposing resentence is without merit (see People v. Khan, 89 AD3d 750, 751; People v. Morgan, 27 AD3d 579, 580; People v. Robinson, 250 A.D.2d 629). However, under the circumstances of this case, the resentence imposed was excessive to the extent indicated (see People v. Suitte, 90 A.D.2d 80).