Opinion
November 25, 1985
Appeal from the Supreme Court, Queens County (Savarese, J.).
Sentence reversed, on the law, and case remitted to Criminal Term for further proceedings consistent herewith.
The sentencing minutes do not indicate compliance with CPL 400.21, i.e., a judicial finding of a prior predicate felony (see, People v Owens, 58 A.D.2d 898). The record does not disclose that defendant admitted the existence of a prior felony conviction, and the error was, therefore, not harmless (cf. People v Bouyea, 64 N.Y.2d 1140).
Furthermore, the record of the plea proceedings discloses some confusion as to whether defendant was to be sentenced as a second or a first felony offender upon conviction of robbery in the second degree, a class C violent offense (see, Penal Law § 70.02 [b]). While the court advised defendant that he faced a minimum of one half the maximum imposed, thus indicating that defendant would be sentenced as a second felony offender (see, Penal Law § 70.06 [b]), the court also advised defendant of the maximum range applicable to a first felony offender (see, Penal Law § 70.02 [a]; [3] [b]).
Accordingly, the question of whether a proper minimum sentence had been imposed should be reviewed upon resentencing. Mollen, P.J., Lazer, Mangano and Gibbons, JJ., concur.