People v. Rodriguez

191 A.D.2d 287, 595 N.Y.S.2d 29, 1993 N.Y. App. Div. LEXIS 2401

Opinion

—Judgment, Supreme Court, Bronx County (Martin Marcus, J., at hearing; Richard Lee Price, J., at trial and sentence), rendered July 18, 1991, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a prison term of 4 to 8 years, unanimously modified, on the law, the sentence vacated, and the matter remanded for resentencing, and otherwise affirmed.

To serve as the basis for predicate status, a sentence must have been rendered before the commission of the instant underlying felony (Penal Law § 70.06 [1] [b] [ii]). The People do not dispute that the predicate sentence at bar was rendered almost a year after the commission of the instant underlying felony. That this objection was not raised at sentence, is not a bar to defendant’s present consideration (see, e.g., People v Bell, 173 AD2d 218, 219, lv denied 78 NY2d 962). Simply stated, there never was a conviction which could serve as a valid predicate conviction. Accordingly, the predicate felony information was defective as a matter of law.

We have considered the defendant’s remaining argument, and find it to be without merit. Concur — Sullivan, J. P., Carro, Wallach and Kupferman, JJ.