Opinion
September 21, 1984
Appeal from the Niagara County Court, DiFlorio, J.
Present — Dillon, P.J., Green, O'Donnell, Moule and Schnepp, JJ.
Judgment, insofar as it imposes sentence, unanimously reversed, on the law, and otherwise judgment affirmed and defendant remanded to Niagara County Court for resentencing, in accordance with the following memorandum: In sentencing defendant as a second felony offender, it was improper to rely upon a predicate felony which postdated the instant offense (Penal Law, § 70.06, subd. 1, par [b]; People v Gillman, 49 A.D.2d 951). Further, by his plea defendant waived his right to a determination of the Huntley hearing (see People v Christy, 92 A.D.2d 750). We have examined the remaining issues and find them to be without merit.