| People v Marrero |
| 2004 NYSlipOp 08982 |
| December 2, 2004 |
| Gayle Palmer, J. |
| Court of Appeals |
| As corrected through Wednesday, February 02, 2005 |
[*1]
| The People of the State of New York, Appellant, v Jose Marrero, Respondent. |
Decided December 2, 2004
People v Marrero, 2 AD3d 107, affirmed.
APPEARANCES OF COUNSEL
Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for appellant.
Legal Aid Society, New York City (Richard Joselson and Laura R. Johnson of counsel), for respondent.
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.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur
Order affirmed in a memorandum.