
    The People of the State of New York, Appellant, v Lester Scarbrough, Respondent.
    Argued September 12, 1985;
    decided October 10, 1985
    
      APPEARANCES OF COUNSEL
    
      Peter L. Broderick, District Attorney (Raymond Thomas Burgasser of counsel), for appellant.
    
      Richard H. Speranza, Public Defender (Leonard G. Tilney, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, the People’s motion pursuant to CPL 440.40 granted, sentence set aside and case remitted to Supreme Court, Niagara County, for the filing of a predicate felony statement prior to resentencing, for the reasons stated in the dissenting memorandum of Justice James H. Boomer at the Appellate Division (105 AD2d 1107-1109).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.  