People v. Mendoza

Appellate Division of the Supreme Court of New York

People v. Mendoza

207 A.D.2d 715, 616 N.Y.S.2d 949, 1994 N.Y. App. Div. LEXIS 8936

Appellate Division of the Supreme Court of the State of New York·Decided September 20, 1994·Published·Cited by 5 cases

Opinion

—Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered November 13, 1992, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 Vi to 9 years, unanimously modified, on the law, the sentence vacated, and the matter remanded for resentencing, and otherwise affirmed.

As the People concede, defendant was improperly adjudicated a second felony offender since sentence on his prior conviction had not been imposed prior to his commission of the present felony (Penal Law § 70.06 [1] [b] [ii]). Accordingly, the sentence must be vacated and the case remanded for resentencing notwithstanding that defendant challenges the [716]*716sentence for the first time on appeal (People v Rodriguez, 191 AD2d 287, lv denied 81 NY2d 1019; People v Mickle, 91 AD2d 920). Concur—Sullivan, J. P., Carro, Nardelli, Williams and Tom, JJ.

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—Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered November 13, 1992, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 Vi to 9 years, unanimously modified, on the law, the sentence vacated, and the matter remanded for resentencing, and otherwise affirmed.

As the People concede, defendant was improperly adjudicated a second felony offender since sentence on his prior conviction had not been imposed prior to his commission of the present felony (Penal Law § 70.06 [1] [b] [ii]). Accordingly, the sentence must be vacated and the case remanded for resentencing notwithstanding that defendant challenges the [716]*716sentence for the first time on appeal (People v Rodriguez, 191 AD2d 287, lv denied 81 NY2d 1019; People v Mickle, 91 AD2d 920). Concur—Sullivan, J. P., Carro, Nardelli, Williams and Tom, JJ.

People v. Mendoza, 207 A.D.2d 715, 616 N.Y.S.2d 949, 1994 N.Y. App. Div. LEXIS 8936 (N.Y. Ct. App. 1994).

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Opinion

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