| People v Williams |
| 2008 NY Slip Op 02248 [49 AD3d 1183] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Derek G.Williams, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedFebruary 22, 2006. The judgment convicted defendant, upon his plea of guilty, of attemptedburglary in the second degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the sentence and as modified thejudgment is affirmed, and the matter is remitted to Ontario County Court for further proceedingsin accordance with the following memorandum: 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 wasimproperly sentenced as a second felony offender inasmuch as the predicate conviction, the NewJersey crime of burglary in the third degree, is not the equivalent of a New York felony. Weagree (see People v Muniz, 74 NY2d 464 [1989]). Even assuming, arguendo, thatdefendant was required to preserve his contention for our review (see People v Samms,95 NY2d 52, 57-58 [2000]), we conclude that this case "presents a proper basis for exercising ourinterest-of-justice jurisdiction" (People vAssadourian, 19 AD3d 207, 208 [2005], lv denied 5 NY3d 785 [2005]; see People v Marrero, 2 AD3d 107[2003], affd 3 NY3d 762 [2004]). We therefore modify the judgment by vacating thesentence. Inasmuch as defendant's sentence was imposed pursuant to a plea agreement, we remitthe 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 AD2d 924, 925 [1990], citing People v Farrar, 52 NY2d302, 307-308 [1981]). Further, should the People be so disposed, they may withdraw theirconsent to the waiver of indictment (see CPL 195.10 [1] [c]; People v Terry, 152AD2d 822, 823 [1989]). Present—Hurlbutt, J.P., Smith, Centra, Lunn and Fahey, JJ.