Opinion
April 9, 1991
Appeal from the Supreme Court, New York County (Harold J. Rothwax, J.).
As the People correctly concede, the sentence, adjudicating defendant a predicate felon, was illegal as a matter of law, since his sentence on the proposed predicate felony was, as a result of a reversal of the original judgment (see, People v Sepulveda, 105 A.D.2d 854), imposed after commission of the instant offense. (See, Penal Law § 70.06 [b] [ii]; People v. Maza, 118 A.D.2d 439, 440.) Thus, the matter should be remanded for resentencing. At such resentencing proceeding the People are not foreclosed from attempting to have defendant sentenced as a predicate felon since it appears that his prior criminal record includes at least one prior felony conviction which might serve as a basis for predicate felony status. (See, People v Santiago, 129 A.D.2d 411.)
In light of the result reached herein, we need not reach defendant's remaining claims.
Concur — Sullivan, J.P., Carro, Ellerin, Ross and Kassal, JJ.