
    The People of the State of New York, Respondent, v Dennis Berard, Appellant.
   Judgment unanimously modified on the law and as modified affirmed and defendant remanded to Niagara County Court for resentencing, in accordance with the following memorandum: Defendant’s conviction for escape in the second degree (Penal Law § 205.10 [2]) cannot be sustained because the People failed to prove that at the time of defendant’s escape he had been lawfully arrested for a felony (People v Jeffries, 129 AD2d 962, 963; People v Warren, 103 AD2d 760). The proof, however, was sufficient to support conviction for the lesser included offense of escape in the third degree (Penal Law § 205.05).

Defendant’s conviction for escape in the second degree is hereby reduced to escape in the third degree and defendant is remanded to Niagara County Court for resentencing (CPL 470.15 [2] [c]; 470.20 [4]).

We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from judgment of Niagara County Court, DiFlorio, J.—conspiracy, fifth degree, and other charges.) Present—Dillon, P. J., Doerr, Denman, Balio and Lawton, JJ.  