Opinion
2013-04-3
The PEOPLE, etc., respondent, v. Mark TAYLOR, appellant.
Gary E. Eisenberg, New City, N.Y., for appellant. *798Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup of counsel), for respondent.
Gary E. Eisenberg, New City, N.Y., for appellant. *798Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Freehill, J.), rendered February 3, 2011, convicting him of criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.
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 in accordance herewith.
The defendant contends that the County Court erroneously adjudicated him a second felony offender. He asserts that he should have been adjudicated a second felony drug offender previously convicted of a violent felony ( see Penal Law § 70.70[4] ). Under the facts of this case, including the People's position on appeal, we deem it appropriate to vacate the sentence and remit the matter to the County Court, Orange County, for resentencing, at which time the court shall clearly set forth the defendant's proper predicate status ( see People v. Smith, 49 A.D.3d 906, 907, 853 N.Y.S.2d 891).