Commendably, the People concede that defendant was improperly adjudicated a second felony offender inasmuch as his 1982 New Jersey conviction of possession of a controlled dangerous substance under New Jersey Statutes Annotated § 24:21-20 (a) (1) does not qualify as a predicate felony in New York. Even though defendant failed to challenge the New Jersey conviction at the time of sentence, he is not precluded from raising the issue on appeal. (People v Tilman, 114 A.D.2d 799; People v Love, 111 A.D.2d 134.) Thus, we modify to vacate the sentence and predicate felony adjudication.
While defendant was promised by Trial Term that he would receive a sentence of 5 1/3 to 16 years if he were found not to be a second felony offender, a term to which we could reduce his present sentence, we remand for resentencing since the presentence report reveals that defendant has been convicted of numerous other felonies in Pennsylvania and New Jersey. The People should be afforded the opportunity to offer one of these other convictions as the requisite predicate felony for second felony treatment. (See, People v Sailor, 65 N.Y.2d 224.)
Concur — Kupferman, J.P., Sullivan, Carro, Asch and Wallach, JJ.