Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered March 21, 2003, convicting him of burglary in the third degree, criminal mischief in the fourth degree, and petit larceny, upon a jury verdict, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of 3V2 to 7 years on the conviction of burglary in the third degree, and one year each on the convictions of criminal mischief in the fourth degree and petit larceny.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant’s contention that the evidence was legally insufficient to establish his guilt of the crimes of burglary in the third degree, criminal mischief in the fourth degree, and petit larceny is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,
We find, however, that the defendant’s adjudication as a second felony offender is without basis in the record. The Supreme Court erred in calculating the tolling of the 10-year limitations period under Penal Law § 70.06 (1) (b) (v). Based on the information contained in the predicate felony statement (see CPL 400.21 [2]), the defendant’s 1987 conviction did not qualify as a predicate felony under Penal Law § 70.06 (1) (b) (iv) and (v). Since the error is apparent from the face of the record (cf. People v Sullivan,