People v Sherman

Holding The court affirmed the conviction for criminal possession of a weapon in the second degree, finding the evidence legally sufficient and not against the weight of the evidence. However, the sentence was vacated and the matter remitted for resentencing because the trial court failed to follow the mandatory statutory procedures for sentencing a persistent violent felony offender.

The court’s words

the evidence—including the eyewitness testimony and body-worn camera footage of the officer who observed defendant discharge multiple shots from a handgun under well-lit conditions from a relatively close distance and then heard the sound of a metallic object hitting another object when defendant briefly ran behind a vehicle before reemerging without the handgun, which was shortly thereafter recovered from the area where it was discarded—is legally sufficient to establish that defendant possessed the handgun

2026 NY Slip Op 05888, at the official text

the statutory sentencing procedures, which [the Court of Appeals] ha[s] described as 'mandatory [in] nature' ... must be followed in any case where[, as here] it appears that a defendant who stands convicted of a violent felony offense as defined in [Penal Law § 70.02 (1)] has previously been subjected to two or more predicate violent felony convictions as defined in [Penal Law § 70.04 (1) (b)], and may be a persistent violent felony offender as defined in [Penal Law § 70.08]

2026 NY Slip Op 05888, at the official text

Inasmuch as the apparently applicable 'procedures and requirements . . . were not followed in this case . . . and it is unclear whether . . . defendant was a persistent felony offender or a persistent violent felony offender' (People v Smith, 177 AD2d 671, 672 [2d Dept 1991], lv denied 79 NY2d 1054 [1992], reconsideration denied 81 NY2d 1020 [1993]), we modify the judgment by vacating the sentence and we remit the matter to Supreme Court for resentencing in accordance with the law.

2026 NY Slip Op 05888, at the official text