PEOPLE v. JOHNSON (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered March 21, 1996, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence on the conviction of criminal sale of a controlled substance in the third degree.

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 Supreme Court, Kings County, for resentencing in accordance herewith.

 The defendant's contention that he was improperly sentenced because he suffers from mental illness is based upon post-conviction prison psychiatric records which are dehors the record.   Accordingly, this claim cannot be reviewed on a direct appeal from the judgment (see, People v. Banks, 244 A.D.2d 560, 664 N.Y.S.2d 816;  People v. Grazzette, 211 A.D.2d 822, 621 N.Y.S.2d 917).

 We find no merit to the defendant's argument that the sentence imposed upon him for criminal sale of a controlled substance in the third degree was excessive.   However, since the court failed to pronounce sentence upon his conviction of criminal possession of a controlled substance in the seventh degree, the matter must be remitted for resentencing on both counts in accordance with CPL 380.20 (see, People v. Sturgis, 69 N.Y.2d 816, 513 N.Y.S.2d 961, 506 N.E.2d 532;  People v. Santiago, 231 A.D.2d 652, 647 N.Y.S.2d 954;  People v. McKinney, 215 A.D.2d 407, 625 N.Y.S.2d 667;  People v. James, 188 A.D.2d 550, 591 N.Y.S.2d 360).

MEMORANDUM BY THE COURT.