
    The People of the State of New York, Respondent, v Samuel Johnson, Also Known as Samuel Bice, Appellant.
   Judgment, insofar as it imposes sentence, unanimously reversed, on the law, and defendant remanded to Monroe County Court for further proceedings in accordance with memorandum, and otherwise judgment affirmed. Memorandum: Defendant was sentenced as a second felony offender to a period of imprisonment of 1 Vz to 3 years. During the sentence proceeding, defendant did not controvert the allegations contained in the second felony offender statement. He admitted that he was the same individual named in the statement and that he had previously been convicted of a felony. Defendant’s attorney, however, informed the court that defendant wished to challenge the constitutional validity of the earlier conviction but that he had advised the defendant that this issue should be raised on appeal. Such advice was erroneous. In view of defendant’s claim of constitutional infirmity, a hearing should have been held (see People v Owens, 58 AD2d 587; cf. People v Fraser, 54 AD2d 965). A previous conviction obtained in violation of a defendant’s constitutional rights must not be counted in determining predicate felony status (CPL 400.21, subd 7, par [b]). (Appeal from judgment of Monroe County Court— criminal possession of stolen property, second degree.) Present—Marsh, P. J., Moule, Cardamone, Dillon and Witmer, JJ.  