People v. LaBrone

Appellate Division of the Supreme Court of New York

People v. LaBrone

261 A.D.2d 416, 691 N.Y.S.2d 61, 1999 N.Y. App. Div. LEXIS 4456

Appellate Division of the Supreme Court of the State of New York·Decided May 3, 1999·Published·Cited by 3 cases

Opinion

—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 5V2 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 NY2d 205; People v Costa, 198 AD2d 513). Therefore, we remit the matter to the Supreme Court, Queens County, for resentencing. Mangano, P. J., Bracken, Ritter, Joy and Goldstein, JJ., concur.

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—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 5V2 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 NY2d 205; People v Costa, 198 AD2d 513). Therefore, we remit the matter to the Supreme Court, Queens County, for resentencing. Mangano, P. J., Bracken, Ritter, Joy and Goldstein, JJ., concur.

People v. LaBrone, 261 A.D.2d 416, 691 N.Y.S.2d 61, 1999 N.Y. App. Div. LEXIS 4456 (N.Y. Ct. App. 1999).

Pincite

261 A.D.2d 416 (People v. LaBrone) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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