People v. Robinson

134 A.D.2d 298, 520 N.Y.S.2d 624, 1987 N.Y. App. Div. LEXIS 50482

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered September 19, 1984, convicting him of criminal possession of a forged instrument in the second degree, upon his plea of guilty, and sentencing him as a second felony offender.

Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the adjudication of the defendant as a second felony offender and the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for resentencing in accordance herewith.

In People v Robinson (133 AD2d 91), this court determined that the defendant’s 1980 Georgia forgery conviction was not necessarily punishable in New York as a felony and that the defendant was therefore improperly sentenced as a second felony offender (see, Penal Law § 70.06 [1] [b]). Since, at bar, the People have relied upon the same Georgia conviction in order to establish the defendant’s status as a second felony offender, we conclude that the sentence imposed herein must similarly be vacated and the matter remitted for resentencing.

We have reviewed the defendant’s remaining contention and find it to be without merit (see, People v Gonzalez, 121 AD2d 562, 563). Brown, J. P., Rubin, Kooper and Sullivan, JJ., concur.