Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered July 16, 1987, convicting defendant, upon his pleas of guilty under three separate indictments, to two counts of robbery in the first degree and sentencing him, as a second violent felony offender, to concurrent indeterminate terms of imprisonment of 9 to 18 years, modified, on the law, by vacating the finding that defendant is a second felony offender and the matter is remitted to the Supreme Court for resentencing of defendant as a first offender.
Defendant was sentenced as a predicate violent felony offender to concurrent terms of imprisonment of from 9 to 18 years, upon his pleas of guilty to two counts of robbery in the first degree. The basis for his predicate status was his December 28, 1972 conviction of robbery in the second degree. The People claimed that although more than 10 years had elapsed between the two convictions, the period of limitation contained in Penal Law § 70.04 (1) (b) (iv) was tolled by defendant’s incarceration from April 1, 1977 to March 13, 1979 and from September 10, 1979 to November 17, 1982 (Penal Law § 70.04 [1] [b] [v]). Defendant maintained that the period from September 10,1979 to November 17,1982 could not be used to toll the period of limitation because he was imprisoned on a conviction which was later reversed with the indictment subsequently being dismissed. Therefore, he states, his sentence as a predicate offender was barred by the 10-year period of limitation. The Supreme Court disagreed and sentenced him as a predicate violent felony offender.
*221In People v Love (71 NY2d 711), the Court of Appeals held that a defendant could not be properly sentenced as a second felony offender where his incarceration on a conviction obtained in violation of his constitutional rights was used to toll the 10-year period of limitation. The court interpreted three statutes to determine the legislative intent in enacting the enhanced sentencing provisions, the period of limitation contained in Penal Law § 70.06 (1) (b) (iv), the exception when defendant is incarcerated "for any reason” as provided in clause (v), and CPL 400.21 (7) (b) which provides that a previous conviction obtained in violation of a defendant’s Federal constitutional rights "must not be counted in determining whether the defendant has been subjected to a predicate felony conviction”. The court then concluded (supra, at 716-717) that "it appears that the Legislature intended that a person convicted of a crime should not be treated as a repeat offender for an old conviction or simply because in the last 10 years he was unconstitutionally convicted and deprived of his liberty.”
The People maintain that the holding in Love (supra) is limited to convictions obtained in violation of a defendant’s constitutional rights, as those rights were judicially construed at the time of conviction (People v Catalanotte, 72 NY2d 641, cert denied — US —, 110 S Ct 55). We disagree and remand for resentencing of defendant as a first offender.
Defendant was convicted in 1980 of rape and sodomy and was imprisoned from September 10, 1979 to November 17, 1982. After defendant moved to vacate the judgment of conviction on the ground of newly discovered evidence pursuant to CPL 440.10 (1) (g), the County Court reversed the conviction and ordered a new trial. However, the indictment was dismissed on the People’s motion. The newly discovered evidence consisted of records and reports of a number of therapists concerning the complainant’s psychiatric history both before and after the alleged rape and sodomy (see, Dozier v State of New York, 134 AD2d 759, where the Third Department reversed the dismissal of defendant’s claim for damages against the State pursuant to the Unjust Conviction and Imprisonment Act and discussed the circumstances leading to the granting of his CPL 440.10 motion). The evidence demonstrated that the complainant suffered from psychological disorders which would have had serious impact on the veracity of her allegations against defendant. The therapists’ records indicated that the complainant was confused about her sexual identity, had distorted perceptions of her encounters with men *222and had a pattern of perceiving herself as a victim. The therapists’ reports further revealed that the complainant had extreme behavioral reactions to rejection and would attempt to avenge or reverse the other person’s rejection of her. She had also told a therapist that she had let herself be raped, enjoyed it and that she felt guilty about pressing charges.
Contrary to the finding of the dissent, the Court of Appeals, in People v Love (supra), did not merely limit its holding to convictions unconstitutionally obtained. The court held (supra, at 716) that "when the statute [Penal Law § 70.06 (1) (b) (v)] says that incarceration 'for any reason’ extends the limitations period, it contemplates at least that the defendant has not been imprisoned without reason or unconstitutionally” (emphasis added). The information concerning the complainant’s psychiatric history, which was discovered, only after defendant was already serving his sentence, and which led to the reversal of his conviction and the People’s decision to dismiss the indictment rather than to retry the case, clearly demonstrates that defendant was imprisoned "without reason”. His innocence of that crime should not be treated as irrelevant.
We agree with the decision in People v Beard (143 AD2d 101), where the Second Department, in interpreting the Love decision (supra), found that defendant was improperly adjudicated a second felony offender based on two prior convictions which were later reversed and declared to be invalid. One conviction was reversed based on a violation of statute (Penal Law § 165.60 [former (2)]; People v Beard, 59 AD2d 720) and the other because defendant’s guilt was not proven beyond a reasonable doubt (People v Beard, 74 AD2d 926). The court stated (143 AD2d, supra, at 102) that "[j]ust as an unconstitutionally obtained conviction cannot support a predicate felony offender adjudication, neither should the sentence imposed, and the time served, upon an invalid conviction extend the 10-year limitation and be used to enhance punishment for another offense (see, People v Love, supra). ”
Nor does the holding in People v Bell (73 NY2d 153) support the contention that defendant was properly sentenced as a predicate felon. Neither Justice Sullivan’s dissent in People v Bell (138 AD2d 298) nor the Court of Appeals decision in that case lends support to the conclusion that this defendant was properly sentenced as a predicate felon. In Bell, defendant’s underlying conviction was first reversed because of a prejudicial jury charge. His conviction after retrial was also reversed because of the introduction of improper evidence. He thereaf*223ter pleaded guilty and was sentenced. Justice Sullivan concluded, and the Court of Appeals agreed, that the date defendant was finally sentenced on his plea, rather than on his earlier convictions, was the date to be used to determine whether that conviction took place within the requisite time period to serve as the basis for sentencing as a predicate felon. As Justice Sullivan noted (supra, at 300), "[a] 'reversal’ under the Criminal Procedure Law 'means the vacating of such judgment’ (CPL 470.10 [1]), which is 'comprised of a conviction and the sentence imposed thereon’ (CPL 1.20 [15]). * * * Following its reversal, defendant’s earlier conviction was no longer a conviction. Similarly, the sentence based on that conviction was no longer a sentence.” The Court of Appeals agreed with Justice Sullivan to the extent that he found the "sentence” to be used to compute the 10-year period was the sentence imposed as part of the final judgment upon defendant’s guilty plea (see also, People v Lewis, 143 Misc 2d 752 [Sup Ct, Kings County]).
Nothing in the legislative history of the sentencing statutes nor in the cases cited by the dissent supports the conclusion that a defendant’s imprisonment for a conviction which is reversed, and the indictment subsequently dismissed, may be used to enhance his sentence on a subsequent conviction. In each of the cited cases, there was a valid prior conviction. Here there is none.
Although the dissent discusses the severity and appropriateness of the sentence imposed, the issue here is not whether further leniency would be appropriate (it would not), but whether the sentence was legally imposed. Concur—Ross, Rosenberger and Ellerin, JJ.