Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing (see People v. Fields, 79 A.D.3d 1448, 1449, 917 N.Y.S.2d 323 [2010] ; People v. Farrow, 69 A.D.3d 980, 981, 892 N.Y.S.2d 630 [2010] ; People v. Mosley, 54 A.D.3d 1098, 1099, 863 N.Y.S.2d 846 [2008] ; People v. Anthony, 52 A.D.3d 864, 865, 859 N.Y.S.2d 269 [2008], lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ; People v. Ruddy, 51 A.D.3d 1134, 1135, 856 N.Y.S.2d 741 [2008], lv. denied 12 N.Y.3d 787, 879 N.Y.S.2d 64, 906 N.E.2d 1098 [2009] ). We note that, inasmuch as this claim implicates the legality of the resentence, it is not precluded by defendant's waiver of the right to appeal (see People v. Fields, 79 A.D.3d 1448, 1449, 917 N.Y.S.2d 323 [2010] ; People v. Mosley, 54 A.D.3d 1098, 1099, 863 N.Y.S.2d 846 [2008] ).
Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing (see People v Fields, 79 AD3d 1448, 1449 [2010]; People v Farrow, 69 AD3d 980, 981 [2010]; People v Mosley, 54 AD3d 1098, 1099 [2008]; People v Anthony, 52 AD3d 864, 865 [2008], lv denied 11 NY3d 733 [2008]; People v Ruddy, 51 AD3d 1134, 1135 [2008], lv denied 12 NY3d 787 [2009]). We note that, inasmuch as this claim implicates the legality of the resentence, it is not precluded by defendant's waiver of the right to appeal (see People v Fields, 79 AD3d 1448, 1449 [2010]; People v Mosley, 54 AD3d 1098, 1099 [2008]).
Additionally, none of the state cases cited by appellate counsel in the portion of petitioner's brief that concerned the issue of whether petitioner was properly sentenced as a second felony offender employed any constitutional analysis in like-fact situations. See id. at 8-11 (citing People v. Kluck, 156 A.D.2d 830 (3d Dep't 1989); People v. Woodard, 48 A.D.2d 980 (3d Dep't 1975); People v. Ladson, 30 A.D.3d 836 (3d Dep't 2006); People v. Bryant, 47 A.D.2d 51 (2d Dep't 1975); People v. Farrow, 69 A.D.3d 980 (3d Dep't 2010); People v. Mosley, 54 A.D.3d 1098 (3d Dep't 2008); and People v. Anthony, 52 A.D.3d 864 (3d Dep't 2008)). Nor does petitioner's claim that he was improperly sentenced as a second felony offender call to mind a specific right protected by the United States Constitution, or allege a pattern of facts that is well within the mainstream of constitutional litigation.
Defendant claims that County Court improperly sentenced him as a second felony drug offender, and we agree. Initially, this argument implicates the legality of his sentence and, as such, survives his appeal waiver ( see People v Glynn, 72 AD3d 1351, 1351-1352, lv denied 15 NY3d 773; People v Mosley, 54 AD3d 1098, 1099). The record does not reflect that the People filed a predicate felony statement prior to sentencing ( see CPL 400.21; Penal Law § 70.71 [b]), and they concede that defendant did not have "an opportunity to be heard with respect to . . . predicate sentencing" ( People v Anthony, 52 AD3d 864, 865, lv denied 11 NY3d 733). Indeed, defendant was not advised during the plea proceedings or thereafter that he was to be sentenced as a second felony drug offender, and County Court did not explicitly find him to be such an offender or sentence him as such ( see CPL 400.21).
The court should have imposed postrelease supervision based on the ranges set out in Penal Law § 70.45 (former [2]). Remittal for resentencing is necessary as it is not possible to discern what periods of postrelease supervision the court would have imposed ( see People v Warner, 69 AD3d 1052, 1054). In view of this determination, defendant's claim that his current sentence is harsh and excessive is academic ( see id.; see also People v Mosley, 54 AD3d 1098, 1099). Ordered that the judgment is modified, on the law, by vacating the sentences imposed; matter remitted to the Supreme Court for resentencing; and, as so modified, affirmed.
He was sentenced in accordance with the negotiated plea agreement to 11 years in prison and three years of postrelease supervision for the criminal sale conviction and 2 to 4 years in prison for the attempted assault conviction, with the prison terms ordered to run concurrently. On appeal, this Court ruled that defendant had not been properly sentenced as a second felony offender because the mandates of CPL 400.21 had not been satisfied ( People v Mosley, 54 AD3d 1098, 1099). Consequently, the sentence was vacated and the matter remitted to County Court for resentencing ( id.).
The remedy for this failure "is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement" ( People v Sparber, 10 NY3d 457, 471; see CPL 380.20; People v Collado, 11 NY3d 888, 889). While we may impose a legal sentence rather than remit for resentencing ( see People v LaSalle, 95 NY2d 827, 829), this remedy is generally reserved for those cases where the intent of the sentencing court may be discerned from the record ( see People v Assadourian, 19 AD3d 207, 208, lv denied 5 NY3d 785; People v Lawrence, 130 AD2d 383). That is not the situation presented here, where County Court failed to impose any term of postrelease supervision ( cf. People v Serrano, 309 AD2d 822, 823, lv denied 1 NY3d 580). As remittal for resentencing is necessary, defendant's argument that his present sentence is harsh and excessive is academic ( see People v Mosley, 54 AD3d 1098, 1099). A range of postrelease supervision terms are permissible: 2½ to 5 years for the rape counts ( see Penal Law § 70.45 [former (2) (f)]), and 1½ to 3 years for the sexual abuse count ( see Penal Law § 70.45 [former (2) (e)]).