Opinion
October 13, 1992
Appeal from the Supreme Court, New York County (Thomas B. Galligan, J.).
As defendant was convicted of a non-violent felony herein, the determination that he was a second violent felony offender was improper and his arrest predicate status was that of a second felony offender. While the maximum sentence for each category is the same under the crime for which defendant was convicted (Penal Law § 70.04 [d]; [4]; § 70.06 [3] [e]; [4] [b]), the matter must nevertheless be remanded for resentencing "since it is uncertain whether the court's error concerning defendant's predicate status influenced its determination of the sentence imposed." (People v Smith, 129 A.D.2d 517, 518.)
We have considered defendant's other arguments and find them to be without merit.
Concur — Sullivan, J.P., Carro, Milonas and Kupferman, JJ.