Opinion
September 20, 1994
Appeal from the Supreme Court, New York County (Herbert Adlerberg, J.).
As the People concede, defendant was improperly adjudicated a second felony offender since sentence on his prior conviction had not been imposed prior to his commission of the present felony (Penal Law § 70.06 [b] [ii]). Accordingly, the sentence must be vacated and the case remanded for resentencing notwithstanding that defendant challenges the sentence for the first time on appeal (People v. Rodriguez, 191 A.D.2d 287, lv denied 81 N.Y.2d 1019; People v. Mickle, 91 A.D.2d 920).
Concur — Sullivan, J.P., Carro, Nardelli, Williams and Tom, JJ.