People v. Brown , 176 A.D.2d 152 ( 1991 )

— Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered February 1, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to an indeterminate term of imprisonment of 1 Vi to 4 Vi years, unanimously reversed, on the law, and the matter remanded for resentencing defendant as a second felony offender.

At issue on this appeal is whether defendant should have been sentenced as a predicate felon. The validity of the predicate felony conviction is challenged on the ground that the court never formally "pronounce[d] sentence”, as required by CPL 380.20, but merely questioned defendant and his counsel, "Is [defendant] ready for sentence * * * it’s six months”. The sentencing Judge in the matter now before us held that the predicate conviction was invalid, despite the fact that the commitment papers were signed and the sentence of 6 months actually served, as the court which imposed sentence on the predicate felony failed to "pronounce” sentence with the usual language and formality employed for that purpose.

Whether or not sentence was properly "pronounced” on the predicate conviction, we find that the defect, if any, was a mere irregularity which does not undermine the validity of the underlying conviction (see generally, People v McClain, 35 NY2d 483, cert denied sub nom. Taylor v New York, 423 US 852), nor raise an issue cognizable pursuant to CPL 400.21 (7) (b) (see, People v Harris, 61 NY2d 9). We accordingly remand for resentencing. Concur — Rosenberger, J. P., Ellerin, Wallach, Kassal and Rubin, JJ.