Opinion
November 7, 1984
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Denman, Boomer, O'Donnell and Schnepp, JJ.
Judgment unanimously modified and as modified, affirmed in accordance with the following memorandum: The People on appeal concede that, at the time the instant crime was committed, defendant had not yet been sentenced on his predicate felony. Therefore, on the instant conviction he may not be sentenced as a second felony offender (Penal Law, § 70.06, subd 1, par [b], cl [ii]).
Accordingly, defendant's adjudication as a predicate felony offender is vacated and the provision for a minimum term of two years is reduced to one and one-third years.