It should not surprise anyone that in People v Durand (2009 NY Slip Op 04476 4th Dept 6/5/09) the Court held that under New York law it was error for the lower court to have considered "the counts of burglary in the third degree and petit larceny, of which defendant was acquitted, when imposing the sentences on the criminal trespass counts (see People v Reeder, 298 AD2d 468, lv denied 99 NY2d 538; see also People v Rogers, 56 AD3d 1173, 1174)." (By contrast under a federal law, a sentencing court may consider conduct for which the defendant was acquitted, as long as that conduct had been proved by a preponderance of the evidence (US v Watts, 519 US 148 [1997]).

What grabbed my attention is that defense counsel failed to preserve that contention for the court's review. One would think that after the not guilty verdicts on those counts it would be upsetting to hear the judge reference them at sentencing. Fortunately, despite counsel's silence, the Fourth Department exercised its power to review that contention as a matter of discretion in the interest of justice, modified the judgment by vacating the sentence, and remitted the matter to County Court for resentencing.