Opinion
May 11, 1990
Appeal from the Supreme Court, Erie County, Morton, J.
Present — Doerr, J.P., Boomer, Green, Pine and Lawton, JJ.
Judgment unanimously modified on the law and as modified affirmed, and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The trial court fashioned appropriate sanctions for the failure of the police to comply with Penal Law § 450.10 before returning property to the victim. The police did not act in bad faith and defendant failed to demonstrate sufficient prejudice resulting from the failure to preserve the evidence to justify the drastic remedy of dismissal (see, People v. Kelly, 62 N.Y.2d 516; People v. Nieves, 133 A.D.2d 234, lv denied 70 N.Y.2d 935).
We conclude, however, that defendant was improperly sentenced as a persistent felony offender because the court based its determination solely upon defendant's criminal conduct and failed to consider defendant's "history and character", as required by CPL 400.20 (1) (b) (see, People v. Frey, 100 A.D.2d 728). Consequently, the sentence should be vacated and the matter is remitted for resentencing. We have examined the remaining issue raised by defendant and find it to be without merit.