People v. Acevedo

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered July 14, 1999, convicting him of criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and criminal possession of a controlled substance in the third degree, upon his plea of guilty, and sentencing him as a second felony offender to three concurrent terms of 5 to 10 years’ imprisonment.

Ordered that the judgment is modified, on the law, by vacating the sentences and the adjudication of the defendant as a second felony offender, and substituting therefor three concurrent terms of 3Vs to 10 years’ imprisonment; as so modified, the judgment is affirmed.

As the People correctly concede, the defendant was improperly adjudicated a second felony offender, since the sentence imposed upon the defendant’s prior conviction was not imposed before the commission of the present felonies (see, Penal Law § 70.06 [1] [b] [ii]; see also, People v Bell, 73 NY2d 153; People v Juliano, 207 AD2d 414). Therefore, the defendant’s adjudication as a second felony offender is vacated and, pursuant to the agreement of the parties, he is resentenced as a first felony offender to three concurrent terms of SVs to 10 years’ imprisonment. Goldstein, J.P., Luciano, Schmidt and Crane, JJ., concur.