People v. Attea

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Defendant was illegally sentenced as a second felony offender on the count of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c]). Under Penal Law § 70.06 (1) (a), only a person convicted of a felony defined by the Penal Law may be sentenced as a second felony offender (see, People v Cammarata, 216 AD2d 965; People v Morris, 86 AD2d 763; People v Smith, 58 AD2d 635). Although defendant waived his…