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People v. Fowler

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 10, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JAMARR FOWLER, DEFENDANT-APPELLANT.

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.

3219/06

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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091110

© 1992-2009 VersusLaw Inc.



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