PEOPLE v. MARRERO, 3 N.Y.3d 762 (2004)

821 N.E.2d 968, 788 N.Y.S.2d 663

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JOSE MARRERO, Respondent.

151.Court of Appeals of the State of New York.
Decided December 2, 2004.

Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 2, 2003. The Appellate Division modified, as a matter of discretion in the interest of justice, a judgment of the Supreme Court, Bronx County (Joseph Fisch, J.), which had convicted 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 sentenced defendant, as a second felony offender, to an aggregate term of imprisonment of 12 years. The modification consisted of vacating the second felony offender adjudication and the sentences imposed and remanding to Supreme Court for resentencing in accordance with the Appellate Division’s decision.

People v. Marrero, 2 AD3d 107, affirmed.

Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for appellant.

Page 763

Legal Aid Society, New York City (Richard Joselson an Laura R. Johnson of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur

OPINION OF THE COURT
Memorandum.

The order of the Appellate Division should be affirmed.

Upon remitting the matter for resentencing based on the sentencing court having — as a result of the parties’ mutual mistake — adjudicated defendant a second felony offender, the Appellate Division allowed the People to allege a different prior felony conviction as a basis for the adjudication. Citing Matter of Kisloff v. Covington (73 NY2d 445, 452 [1989]), the Appellate Division correctly ruled that in the event defendant cannot properly be adjudicated a second felony offender, the People should not be permitted to withdraw their consent to defendant’s guilty plea.

Order affirmed in a memorandum.