People v. Mendoza

—Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered November 13, 1992, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 Vi to 9 years, unanimously modified, on the law, the sentence vacated, and the matter remanded for resentencing, and otherwise affirmed.

As the People concede, defendant was improperly adjudicated a second felony offender since sentence on his prior conviction had not been imposed prior to his commission of the present felony (Penal Law § 70.06 [1] [b] [ii]). Accordingly, the sentence must be vacated and the case remanded for resentencing notwithstanding that defendant challenges the *716sentence for the first time on appeal (People v Rodriguez, 191 AD2d 287, lv denied 81 NY2d 1019; People v Mickle, 91 AD2d 920). Concur—Sullivan, J. P., Carro, Nardelli, Williams and Tom, JJ.