Opinion
November 29, 1993
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the sentence is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
Since the defendant was not sentenced on the conviction which served as the basis for adjudicating him a second felony offender until after his commission of the instant crime, the court erred in adjudicating him a second felony offender (see, Penal Law § 70.06 [b] [ii]). Therefore, we remit the matter to the Supreme Court, Kings County, for resentencing.
We note, however, that the maximum term of 18 years imprisonment which the court imposed was not excessive under the circumstances (see, People v Suitte, 90 A.D.2d 80). Bracken, J.P., Balletta, Eiber, O'Brien and Pizzuto, JJ., concur.