PEOPLE v. JOHNSON

Evidence that the arresting officer "knew" defendant was properly admitted since defendant vigorously challenged the identification made by the officer (cf., People v Hendricks, 205 A.D.2d 333, lv denied 84 N.Y.2d 826), and the trial court's prompt instruction to the jury to disregard the officer's testimony that he knew defendant because he had "arrested him several times before" was sufficient to dispel any prejudice inherent in such testimony (see, People v Baez, 208 A.D.2d 638, lv denied 84 N.Y.2d 1028).

Notwithstanding the People's failure to timely appeal the original sentence, defendant was properly resentenced pursuant to CPL 440.40, where his previously imposed sentence of 3 1/2 to 7 years was invalid as a matter of law (Penal Law § 70.08, [3] [c]), and the record belies defendant's claim that the issue of whether persistent violent sentencing was mandatory under the statute was resolved "`on the merits'" by the sentencing court (cf., People v Frangiamone, 99 A.D.2d 842).

Concur — Sullivan, J.P., Rubin, Asch, Nardelli and Tom, JJ.