Opinion
2359, 2359A.
December 2, 2003.
Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 16, 1999, convicting defendant, upon his plea of guilty, of robbery in the first degree (two counts), attempted robbery in the third degree and criminal sale of a controlled substance in the third degree (two counts) and sentencing him, as a second felony offender, to an aggregate term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the second felony offender adjudication and the sentences imposed and remanding for resentencing proceedings in accordance with the decision herein, and otherwise affirmed. Appeal from order, same court and Justice, entered on or about January 24, 2003, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, unanimously dismissed as academic in view of the foregoing.
Christopher J. Blira-Koessler, for Respondent.
Laura Boyd, for Defendant-Appellant.
Before: Buckley, P.J., Saxe, Ellerin, Marlow, Gonzalez, JJ.
As the People concede, defendant was improperly adjudicated a second felony offender since the statute upon which defendant's federal conviction was based ( 18 U.S.C. § 641) proscribed broader conduct than its New York counterpart (Penal Law § 155.30). Although defendant failed to preserve this issue for review on direct appeal as a matter of law ( People v. Samms, 95 N.Y.2d 52, 57), we reach the issue in the interest of justice. Accordingly, we remand the matter for resentencing, at which time the People may allege a different prior felony conviction as the basis for a second felony offender adjudication ( see People v. Candelario, 183 A.D.2d 440, lv denied 80 N.Y.2d 894; see also People v. Hunt, 162 A.D.2d 782, affd 78 N.Y.2d 932, cert denied 502 U.S. 964). However, we reject the People's argument that they should be permitted to withdraw their consent to the plea in the event that defendant is not again adjudicated a second felony offender based upon the existence of a different prior felony conviction ( see Matter of Kisloff v. Covington, 73 N.Y.2d 445, 452).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.