Opinion
March 6, 1989
Appeal from the County Court, Suffolk County (Cacciabaudo, J.).
Ordered that the sentences are reversed, on the law, and the case is remitted to the County Court for further proceedings consistent herewith.
The court records do not indicate that the procedures set forth in CPL 400.21 for determining the defendant's status as a second felony offender were complied with. Since the sentences imposed by the County Court are legally permissible only in the event the defendant is found to be a second felony offender, they must be vacated and the case remitted for resentencing in accordance with CPL 400.21 (see, People v. Meadows, 114 A.D.2d 1044; People v King, 114 A.D.2d 650; People v. Pfunter, 101 A.D.2d 1020).
Although we are remanding for resentencing, we would note that there is insufficient evidence in the record to support the defendant's contention that there were mitigating circumstances bearing directly upon the manner in which the attempted burglary offense was committed to warrant the imposition of a concurrent sentence (Penal Law § 70.25 [2-b]; People v. Camacho, 120 A.D.2d 671). Thompson, J.P., Kunzeman, Eiber, Spatt and Balletta, JJ., concur.