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 Supreme Court's Sandoval ruling was a provident exercise of discretion (see People v. Walker, 83 N.Y.2d 455; People v. Sandoval, 34 N.Y.2d 371; People v. Cruz, 176 A.D.2d 751).
However, we remit the matter to the Supreme Court, Kings County, for resentencing before a different Justice. The sentencing court's remarks demonstrated that it improperly considered crimes of which the defendant was acquitted as a basis for sentencing (see People v. Innis, 288 A.D.2d 236; People v. Santiago, 277 A.D.2d 258).
FEUERSTEIN, J.P., SMITH, GOLDSTEIN and LUCIANO, JJ., concur.