OPINION OF THE COURT

Order reversed, the People’s motion pursuant to CPL 440.40 granted, sentence set aside and case remitted to Supreme Court, Niagara County, for the filing of a predicate felony statement prior to resentencing, for the reasons stated in the dissenting memorandum of Justice James H. Boomer at the Appellate Division (105 AD2d 1107-1109).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.