People v. Gillman — 49 A.D.2d 951

Majority

p. 951

The People of the State of New York, Respondent, v Steven Gillman, Appellant.

Appeal by defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County, imposed February 28, 1974, upon a conviction of robbery in the second degree, upon his plea of guilty. Sentence reversed, on the law, and case remanded to the Criminal Term for resentencing. On February 28, 1974 defendant was sentenced, as a second felony offender, to a prison term of a minimum of five and a maximum of 10 years. However, the sentence for the predicate felony was imposed on December 7, 1973, approximately one-and-a-half months after the occurrence which formed the basis for the instant conviction. Section 70.06 (subd 1, par [b]) of the Penal Law provides: "For the purpose of determining whether a prior conviction is a predicate felony conviction the following

p. 952

criteria shall apply: * * * (ii) Sentence upon such prior conviction must have been imposed before commission of the present felony”. Since the sentence for the predicate felony postdates the instant offense, it may not be used as the basis for finding that defendant is a second-felony offender for the purpose of the instant sentence. The District Attorney concedes the invalidity of the instant sentence and that defendant must be resentenced. Cohalan, Acting P. J., Margett, Christ, Brennan and Munder, JJ., concur.