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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Respondent, v. John CAMPBELL, Appellant.

Decided: December 31, 1998

Present:  DENMAN, P.J., PINE, PIGOTT, Jr., CALLAHAN and BOEHM, JJ. Gerald T. Barth by Judith Malkin, Syracuse, for Appellant. William J. Fitzpatrick by Victoria Anthony, Syracuse, for Respondent.

 Defendant contends that his plea of guilty to attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) was not entered knowingly, intelligently and voluntarily because he initially denied that he intended to kill his girlfriend.   County Court, however, properly refused to accept his guilty plea after he made that statement.   It was only after defendant conferred with his attorney and the case was recalled that defendant admitted that he stabbed his girlfriend with a knife with the intent to kill her.   Defendant was not denied effective assistance of counsel.   Although the court asked defense counsel to explain certain remarks that he had made to a court clerk, defense counsel was not compelled to take a position adverse to defendant (cf., People v. Welsh, 207 A.D.2d 1025, 617 N.Y.S.2d 107).

The People concede that defendant was improperly sentenced as a predicate felon on the basis of a prior Federal conviction for the crime of making a false statement to a licensed firearms dealer for the purpose of acquiring a firearm, in violation of 18 U.S.C. § 922(a)(6) (see, People v. Behrman, 141 A.D.2d 372, 529 N.Y.S.2d 482).   We therefore modify the judgment by vacating the sentence, and we remit the matter to Onondaga County Court for resentencing.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for resentencing.


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