People v. Horsley

—Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Corso, J.), imposed March 18, 1997, upon his conviction of criminal possession of a controlled substance in the third degree (two counts), and criminal sale of a controlled substance in the third degree (two counts), upon his plea of guilty, the sentence being concurrent indeterminate terms of four and one-half to nine years imprisonment on each count. Ordered that the sentence is vacated, on the law, and the matter is remitted to the County Court, Suffolk County, for further proceedings in accordance herewith. The defendant was sentenced to a minimum term of imprisonment which was one-half of the maximum term, pursuant to Penal Law § 70.06 (4) (b). However, there is no indication in the record that the defendant was given an opportunity to controvert his status as a second felony offender. Accordingly, as the People concede, the matter must be remitted for resentencing and for a proper adjudication of the defendant’s status as a predicate felon (see, People v Rembert, 153 AD2d 959; People v Morrison, 100 AD2d 976). Mangano, P. J., Bracken, O’Brien, Pizzuto and Florio, JJ., concur.