People v. Mitchell

88 A.D.2d 982, 451 N.Y.S.2d 789, 1982 N.Y. App. Div. LEXIS 17366

Opinion

— Appeal by defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered April 28,1981, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence as a second felony offender. Judgment modified, on the law, by vacating the second felony offender adjudication and the sentence imposed. As so modified, judgment affirmed, and matter remitted to the County Court, Suffolk County, for resentencing. Defendant was sentenced as a second felony offender pursuant to CPL 400.21. However, the predicate felony was the result of a youthful offender adjudication which is not a judgment of conviction (CPL 720.35, subd 1). The sentence is, therefore, contrary to law and must be vacated (see CPL 450.30, subd 1; People v Figueroa, 62 AD2d 971). Accordingly, the matter is remitted to the County Court for resentencing. We have considered defendant’s other contentions and find them to be without merit. Mollen, P. J., Gulotta, Brown and Niehoff, JJ., concur.