Opinion
February 3, 1994
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
Defendant argues, and the People concede, that he was not properly sentenced. The prosecutor never filed a predicate violent felony conviction statement and the court never provided defendant an opportunity to review and challenge the statement, as required by CPL 400.16, before a defendant may be determined to be a persistent violent felony offender.
Defendant is in error, however, when he argues that his sentence should be vacated and the case remanded so that he can be sentenced as a first felony offender. Instead, as the People also concede, the case must be remanded so that defendant can be properly sentenced as a persistent violent felony offender upon the filing of a predicate violent felony conviction statement and inquiry by the court (People v. Hemphill, 129 A.D.2d 460).
Concur — Carro, J.P., Ellerin, Rubin, Nardelli and Tom, JJ.