People v Fowler

People v Fowler 2009 NY Slip Op 08068 [67 AD3d 476] November 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
v
Jamarr Fowler, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Allen H. Saperstein of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered July 31, 2008, convicting defendant, after a jury trial, of rape in the second degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years, unanimously modified, as a matter of law, to the extent of remanding for resentencing, to include the filing of a predicate felony statement, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning credibility. The victim gave a plausible account of the incident that was corroborated by other evidence. Although, in performing weight of evidence review, we may consider the jury's verdict on other counts (see People v Rayam, 94 NY2d 557, 563 n [2000]), we find that the jury's mixed verdict does not warrant a different conclusion.

As the People concede, defendant is entitled to be resentenced because there is no record of any predicate felony statement or any proceeding to adjudicate defendant a second felony offender. Concur—Tom, J.P., Friedman, Nardelli, Buckley and Richter, JJ.