PEOPLE v. WILLIAMS (2008)

 On appeal from a judgment convicting him, upon his plea of guilty, of three counts of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ), defendant contends for the first time on appeal that he was improperly sentenced as a second felony offender inasmuch as the predicate conviction, the New Jersey crime of burglary in the third degree, is not the equivalent of a New York felony.   We agree (see People v. Muniz, 74 N.Y.2d 464, 548 N.Y.S.2d 633, 547 N.E.2d 1160).   Even assuming, arguendo, that defendant was required to preserve his contention for our review (see People v. Samms, 95 N.Y.2d 52, 57-58, 710 N.Y.S.2d 310, 731 N.E.2d 1118), we conclude that this case “presents a proper basis for exercising our interest-of-justice jurisdiction” (People v. Assadourian, 19 A.D.3d 207, 208, 796 N.Y.S.2d 913, lv. denied 5 N.Y.3d 785, 801 N.Y.S.2d 805, 835 N.E.2d 665;  see People v. Marrero, 2 A.D.3d 107, 767 N.Y.S.2d 614, affd. 3 N.Y.3d 762, 788 N.Y.S.2d 663, 821 N.E.2d 968).   We therefore modify the judgment by vacating the sentence.   Inasmuch as defendant's sentence was imposed pursuant to a plea agreement, we remit the matter to County Court to resentence defendant or to “entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety” (People v. Irwin, 166 A.D.2d 924, 925, 561 N.Y.S.2d 676, citing People v. Farrar, 52 N.Y.2d 302, 307-308, 437 N.Y.S.2d 961, 419 N.E.2d 864).   Further, should the People be so disposed, they may withdraw their consent to the waiver of indictment (see CPL 195.10[1] [c];  People v. Terry, 152 A.D.2d 822, 823, 543 N.Y.S.2d 766).

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for further proceedings.

MEMORANDUM: