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 31/2 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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, Nardelli, Buckley, Richter, JJ.
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 ). 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 ), 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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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