Opinion
October 7, 1992
Appeal from the Monroe County Court, Maloy, J.
Present — Callahan, J.P., Green, Balio, Davis and Doerr, JJ.
Judgment insofar as it imposes sentence unanimously reversed on the law and matter remitted to Monroe County Court for resentencing in accordance with the following Memorandum: Defendant should have been sentenced as a second felony offender. Defendant's prior conviction for grand larceny in the third degree is a conviction "in this state of a felony"; thus, it is a proper predicate felony conviction (Penal Law § 70.06 [b] [i]). Although the act for which defendant was convicted would, under present law, constitute only petit larceny, a class A misdemeanor, defendant is not entitled to the benefit of the statutory amendments because defendant's conviction was final over two years prior to the effective date of the amendments (People v Carter, 173 A.D.2d 631, lv denied 78 N.Y.2d 963; cf., People v Behlog, 74 N.Y.2d 237; People v Bergos, 170 A.D.2d 611, 612, lv denied 78 N.Y.2d 920).