Opinion
2002-10354.
April 11, 2006.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered November 4, 2002, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
Greg T. Rinckey, Albany, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.
Before: Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for resentencing.
Based on the information in the predicate felony statement ( see CPL 400.21), the County Court erred in adjudicating the defendant a second felony offender ( see People v. Stanley, 12 AD3d 467). As the People concede, the incarceration dates set forth in the predicate felony statement did not amount to a sufficient tolling period to qualify the defendant's 1987 conviction as a predicate felony under Penal Law § 70.06 (1) (b) (iv) and (v). Accordingly, the sentence must be vacated and the matter remitted to the County Court, Orange County, for resentencing.