Opinion
1999-06951
Submitted February 20, 2002.
March 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered July 14, 1999, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and criminal possession of a controlled substance in the third degree, upon his plea of guilty, and sentencing him as a second felony offender to three concurrent terms of 5 to 10 years imprisonment.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Christopher Ronk of counsel), for respondent.
Before: GLORIA GOLDSTEIN, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is modified, on the law, by vacating the sentences and the adjudication of the defendant as a second felony offender, and substituting therefor three concurrent terms of 3 1/3 to 10 years imprisonment; as so modified, the judgment is affirmed.
As the People correctly concede, the defendant was improperly adjudicated a second felony offender, since the sentence imposed upon the defendant's prior conviction was not imposed before the commission of the present felonies (see, Penal Law § 70.06[b][ii]; see also, People v. Bell, 73 N.Y.2d 153; People v. Juliano, 207 A.D.2d 414). Therefore, the defendant's adjudication as a second felony offender is vacated and, pursuant to the agreement of the parties, he is resentenced as a first felony offender to three concurrent terms of 3 1/3 to 10 years imprisonment.
GOLDSTEIN, J.P., LUCIANO, SCHMIDT and CRANE, JJ., concur.