People v. Habe , 530 N.Y.S.2d 1006 ( 1988 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joy, J.), rendered September 21, 1987, convicting him of attempted criminal possession of stolen property in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the defendant’s adjudication as a second felony offender and the sentence imposed thereon, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith; as so modified, the judgment is affirmed.

Based on the record before this court, we are unable to determine whether the defendant was properly adjudicated as a second felony offender based upon his prior 1982 Federal conviction for conspiracy to transport stolen property. Thus, as the People acknowledge, the appropriate remedy in this case is to vacate the defendant’s adjudication and remit the matter to the Supreme Court for a new determination as to whether the defendant’s prior conviction can serve as a basis for enhanced sentencing (see, People v Fusillo, 94 AD2d 802). If he so chooses, the defendant may move to have new counsel assigned to represent him.

We have reviewed the defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.