Opinion
February 16, 2000
Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Felony Driving While Intoxicated.
PRESENT: WISNER, J. P., PIGOTT, JR., HURLBUTT AND BALIO, JJ.
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; § 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 A.D.2d 965; People v. Morris, 86 A.D.2d 763; People v. Smith, 58 A.D.2d 635). Although defendant waived his right to appeal, that waiver does not encompass the right to challenge the legality of a sentence ( see, People v. Seaberg, 74 N.Y.2d 1, 9). We therefore modify the judgment by vacating the sentence imposed for felony driving while intoxicated, and we remit the matter to Supreme Court for resentencing on that count.