
    The People of the State of New York, Respondent, v Unique Smith, Appellant.
    [758 NYS2d 519]
   —Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered February 26, 2001, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing by a different justice.

Contrary to the defendant’s contention, the pretrial identification procedures were not unduly suggestive (see People v Chipp, 75 NY2d 327 [1990], cert denied 498 US 833 [1990]).

We remit the matter to the Supreme Court, Kings County, for resentencing before a different justice. The remarks of the sentencing court demonstrated that it improperly considered crimes of which the defendant was acquitted as a basis for sentencing (see People v Innis, 288 AD2d 236 [2001]; People v Santiago, 277 AD2d 258 [2000], lv denied 98 NY2d 772 [2002]). Santucci, J.P., Smith, McGinity and Schmidt, JJ., concur.  