
    The People of the State of New York, Respondent, v Ignacio Velez, Appellant.
   Motion by the defendant for reargument of an appeal from a sentence of the Supreme Court, Kings County (Miller, J.), imposed January 4, 1989, which was determined by decision and order of this court dated September 30, 1991 [176 AD2d 437].

Upon the papers filed in support of the motion and the papers filed in relation thereto, it is,

Ordered that the motion is granted, and upon reargument, the decision and order of this court dated September 30, 1991, is recalled and vacated, and the following decision and order is substituted therefor:

"Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Miller, J.), imposed January 4, 1989.

"Ordered that the appeal is dismissed as academic.

"The sentence was vacated by order of the Supreme Court, Kings County, dated August 27, 1991.”

The defendant limited his appeal before this court to the alleged excessiveness of his sentence. By decision and order dated September 30, 1991, this court affirmed the defendant’s sentence.

Approximately one month before this court’s order was handed down, however, the Supreme Court vacated the defendant’s sentence pursuant to CPL 440.20. The defendant did not apprise this court that his sentence had been vacated until he submitted the instant application for reargument. The defendant now argues that, in light of the Supreme Court’s prior vacatur of the sentence appealed from, the decision and order of this court should be recalled and vacated. The People do not oppose the motion.

The defendant’s motion should be granted. At the time this court issued its decision and order affirming the defendant’s sentence, there was no longer any sentence from which an appeal could be taken, and the appeal was academic. Mangano, P. J., Balletta, Lawrence and Ritter, JJ., concur.  