dissent and vote to affirm in the following memorandum: We cannot agree that relator’s sentence to “time served” on his 1968 plea of guilty to attempted grand larceny, second degree, constitutes “a sentence to a term of imprisonment in excess of one year” (Penal Law, § 70.10, subd 1, par [b], cl [i]) so as to form a basis for persistent felony offender status. While it is true that at the time of sentencing, relator had already served jail time far in excess of one year, we do not accept the majority’s premise that the sentence to “time served” is actually a sentence “to a term equivalent to the time [relator] has already spent in custody under an invalid conviction”. We do not know what sentence the court would have given relator if he had not already served in excess of the maximum for the crime pleaded; indeed, the court here could legally have sentenced relator to one year or less (Penal Law, § 70.00, subd 4). Where, as here, the-sentence could have been one year or less, we cannot, in our opinion, hold as a matter of law that a sentence to “time served” constitutes a sentence “in excess of one year” solely on the ground that the defendant accumulated over a year of jail time prior to sentencing. Application of this precedent to a defendant who would have received a sentence to one year or less but who was sentenced to “time served” because he had already served more than one year could result in manifest injustice; and to such a defendant it is no answer that a subsequent sentencing court might in its discretion decline to sentence him as a persistent felony offender. Whether a given conviction may be counted in determining whether a defendant is a persistent felony offender is a purely legal question to be decided in accordance with the statutory definition (Penal Law, § 70.10, subd 1) and is not a subject for the court’s discretion. We note also that there is no provision in the Penal Law or elsewhere authorizing a sentence to “time served.” (Appeal from judgment of Supreme Court, Wyoming County, Conable, J. — habeas corpus.) Present — Hancock, Jr., J. P., Callahan, Boomer, Green and Schnepp, JJ.