People v. Smith

OPINION OF THE COURT

Charles A. Kuffner, Jr., J.

The People have made application to set aside the judgment *307in this case and resentence the defendant. The People maintain defendant’s original sentence is improper because he was not adjudicated and sentenced as a predicate felon.

On August 23, 1991 defendant was sentenced to one to three years after having previously pleaded guilty to burglary in the third degree. He was transferred to the New York State Department of Correctional Services on October 4, 1991. Subsequent to his incarceration with the State, the parole office discovered that…