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

The PEOPLE, etc., respondent, v. Daniel LAND, appellant.

Decided: August 02, 2004

GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, BARRY A. COZIER, and WILLIAM F. MASTRO, JJ. Joel Martin Aurnou, White Plains, N.Y., for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (Edward D. Saslaw and Richard E. Weill of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered May 3, 2002, convicting him of promoting prostitution in the third degree (two counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reducing the defendant's convictions for promoting prostitution in the third degree to convictions for promoting prostitution in the fourth degree, and vacating the sentences imposed;  as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing.

 The evidence was legally insufficient to establish that the defendant managed, supervised, controlled, or owned the subject prostitution enterprise (see Penal Law § 230.25).   The uncontroverted testimony showed that the defendant was merely a security guard at the club and was insufficient to establish the “managerial or controlling role required by the section under which he was convicted” (People v. Davilla, 110 A.D.2d 545, 546, 488 N.Y.S.2d 2).   However, the evidence was legally sufficient to establish that the defendant knowingly advanced or profited from prostitution (see Penal Law § 230.20).

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