PEOPLE, res, v. ROGER THOMAS, def-ap

10650-10651. PEOPLE, res, v. ROGER THOMAS, def-ap — Richard M. Greenberg, Office of the Appellate Defender, New York (Kerry S. Jamieson of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for res ——Judgment, Supreme Court, New York County (James A. Yates, J. at charge reinstatement; Ruth Pickholz, J. at retrial and sentencing), rendered October 2, 2009, as amended December 18, 2009 and January 4, 2010, convicting defendant, after a jury trial, of attempted rape in the first degree and assault in the second degree, and sentencing him to concurrent terms of 4 to 8 years and 1 1/2 to 3 years, respectively, unanimously affirmed. The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

Defendant was indicted for attempted rape in the first degree and assault in the second degree. At his first trial, the jury found him guilty on the assault charge and deadlocked on the attempted rape charge. At sentencing, the court orally pronounced a sentence of two to four years on the assault charge and immediately dismissed the attempted rape charge upon the People’s motion. Defendant then successfully appealed from his conviction on the assault charge, and this Court remanded for a new trial (47 AD3d 415 [1st Dept 2008], lv denied 10 NY3d 772 [2008]).