PEOPLE v. LaBRONE (1999)

Appeal by the defendant, as limited by his motion, from two sentences of the Supreme Court, Queens County (Schulman, J.), both imposed February 3, 1997, upon his convictions of criminal sale of a controlled substance in the third degree (two counts, one each under Indictment No. 11667/ 95 and Indictment No. 12005/95), upon his pleas of guilty, the sentences being concurrent indeterminate terms of imprisonment of 5 1/212 to 11 years as a second felony offender.

ORDERED that the sentences are reversed, on the law, the adjudication of the defendant as a second felony offender is vacated, and the matter is remitted to the Supreme Court, Queens County, for resentencing.

Since the defendant was not sentenced on the conviction which served as the basis for adjudicating him a second felony offender until after his commission of the instant crime, the court erred in adjudicating him a second felony offender (see, Penal Law § 70.06[1][b][ii];  People v. Morse, 62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12;  People v. Costa, 198 A.D.2d 513, 604 N.Y.S.2d 193).   Therefore, we remit the matter to the Supreme Court, Queens County, for resentencing.

MEMORANDUM BY THE COURT.