People v. Michael , 115 A.D.2d 494 ( 1985 )

Appeal by defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered May 27, 1983, convicting him of robbery in the first degree, burglary in the first degree, robbery in the second degree, burglary in the second degree, criminal possession of stolen property in the first degree and unauthorized use of a vehicle in the second degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reducing defendant’s conviction of unauthorized use of a vehicle in the second degree to unauthorized use of a vehicle in the third degree and vacating the sentence imposed thereon. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for resentencing upon defendant’s conviction of unauthorized use of a vehicle in the third degree.

In order to convict a defendant of the crime of unauthorized use of a vehicle in the second degree, the People are required to prove that he or she has been previously convicted of the crime of unauthorized use of a vehicle in either the second or third degrees within the preceding 10 years (Penal Law § 165.06). Since the record fails to reveal proof of any prior convictions which would satisfy this element of unauthorized use of a vehicle in the second degree, the defendant’s conviction under that count of the indictment must be reduced to unauthorized use of a vehicle in the third degree (Penal Law § 165.05) and the matter remitted for resentencing thereon.

Insofar as defendant has sought to challenge the denial of his postjudgment motion based upon newly discovered evidence (CPL 440.10 [1] [g]), that issue is not cognizable upon this appeal from the judgment of conviction. We have examined defendant’s remaining contentions and find them to be without merit. Gibbons, J. P., Bracken, Kunzeman and Kooper, JJ., concur.