People v. Santiago

28 A.D.3d 590, 812 N.Y.S.2d 358

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered November 4, 2002, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for resentencing.

Based on the information in the predicate felony statement (see CPL 400.21 [2]), the County Court erred in adjudicating the defendant a second felony offender (see People v Stanley, 12 AD3d 467 [2004]). As the People concede, the incarceration dates set forth in the predicate felony statement did not amount to a sufficient tolling period to qualify the defendant’s 1987 conviction as a predicate felony under Penal Law § 70.06 (1) (b) (iv) and (v). Accordingly, the sentence must be vacated and the matter remitted to the County Court, Orange County, for resentencing. Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.