majority">

*736Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July 22, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a guilty plea, of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1], [12]). The sole contention of defendant on appeal is that he was improperly adjudicated a second felony offender. Specifically, defendant contends that the tolling provision under Penal Law § 70.06 (1) (b) (v) does not apply to time served while in a day-reporting work release program. We reject that contention.

In determining whether a prior conviction is a predicate felony for purposes of second felony offender status, the sentence imposed upon the prior felony conviction “must have been imposed not more than ten years before the commission of the [present] felony” (Penal Law § 70.06 [1] [b] [iv]). That time period is tolled, however, for “any period of time during which the person was incarcerated” (§ 70.06 [1] [b] [v]). We conclude that the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services. Furthermore, the period of time in which defendant was in that program was credited toward his sentence of imprisonment. We thus conclude that the tolling provision applies thereto (see People v O'Garra, 16 AD3d 251, 253 [2005] [affg 1 Misc 3d 901(A), 2003 NY Slip Op 51457(U), *23-24], lv denied 5 NY3d 766 [2005], cert denied — US —, 126 S Ct 627 [2005]) and that defendant therefore was properly adjudicated a second felony offender.

All concur except Martoche and Pine, JJ., who dissent and vote to reverse the judgment insofar as it imposes sentence in accordance with the following memorandum.

Citation profile

How this case has been treated — in progress