People v. Menasche

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Thomas, J.), rendered June 6, 1994, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing before a different Justice.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

In determining the defendant’s sentence, the court took into account the facts underlying a prior similar case, in which the defendant was acquitted. Based upon those facts, the court determined that the defendant had established a pattern of violent behavior. This was clearly improper and requires that the case be remitted for resentencing before a different Justice (see, People v Coward, 100 AD2d 628). O’Brien, J. P., Copertino, Santucci and Krausman, JJ., concur.