IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED; PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT).

The Second Department determined the sentencing court erroneously considered a crime of which defendant was acquitted in sentencing. The Second Department further noted that the People did not demonstrate that the assault and robbery convictions were based upon different underlying facts, therefore the sentences must run concurrently:

Certain remarks made by the sentencing court demonstrate that it improperly considered a crime of which the defendant was acquitted as a basis for sentencing. Accordingly, the matter must be remitted … for resentencing … . Further, since the People failed to establish that the acts underlying the conviction of assault in the first degree were separate and distinct from the acts underlying the conviction of attempted robbery in the first degree, the sentences imposed on remittal are to run concurrently … . People v Newman, 2017 NY Slip Op 06086, Second Dept 8-9-17

CRIMINAL LAW (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))/SENTENCING (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))/CONCURRENT SENTENCES (IN SENTENCING DEFENDANT, SUPREME COURT ERRONEOUSLY CONSIDERED A CRIME OF WHICH DEFENDANT WAS ACQUITTED, PEOPLE DID NOT DEMONSTRATE UNDERLYING FACTS OF THE ASSAULT AND ROBBERY CONVICTIONS WERE DIFFERENT, SENTENCES MUST RUN CONCURRENTLY (SECOND DEPT))