People v. Costa

198 A.D.2d 513, 604 N.Y.S.2d 193

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1993
• Status: Published

Opinion

—Appeal by the defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County (Moskowitz, J.), imposed September 30, 1992, the sentence being an indeterminate term of 9 to 18 years imprisonment, upon his conviction of manslaughter in the first degree, upon his plea of guilty.

Ordered that the sentence is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

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]). Therefore, we remit the matter to the Supreme Court, Kings County, for resentencing.

We note, however, that the maximum term of 18 years imprisonment which the court imposed was not excessive under the circumstances (see, People v Suitte, 90 AD2d 80). Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.