| People v Nieves-Rojas |
| 2015 NY Slip Op 02307 [126 AD3d 1373] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vReymundo Nieves-Rojas, Appellant. (Appeal No. 1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered August 20, 2013. The judgment convicted defendant, upon his plea ofguilty, of burglary in the second degree and burglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentence andas modified the judgment is affirmed, and the matter is remitted to Supreme Court, ErieCounty, for further proceedings in accordance with the following memorandum: Inappeal No. 1, defendant appeals from a judgment convicting him upon his plea of guiltyof burglary in the second degree (Penal Law § 140.25 [2]) and burglary inthe third degree (§ 140.20) and, in appeal No. 2, he appeals from ajudgment convicting him upon his plea of guilty of two counts of attempted burglary inthe second degree (§§ 110.00, 140.25 [2]).
Defendant's contention in each appeal that he was denied effective assistance ofcounsel is foreclosed by his plea of guilty because he failed to allege that the pleabargaining process " 'was infected by [the] allegedly ineffective assistance or that[he] entered the plea because of his attorney's allegedly poor performance' " (People v Wright, 66 AD3d1334, 1334 [2009], lv denied 13 NY3d 912 [2009]; see People v Gleen, 73 AD3d1443, 1444 [2010], lv denied 15 NY3d 773 [2010]).
We agree with defendant, however, that he was improperly sentenced as a secondviolent felony offender in each appeal inasmuch as the predicate conviction, i.e., the NewJersey crime of burglary in the third degree, is not the equivalent of a New York felony(see People v Muniz, 74 NY2d 464, 467 [1989]; People v Williams, 49 AD3d1183, 1184 [2008]). Defendant raises this contention for the first time on appeal but,even assuming, arguendo, that he was required to preserve it for our review (seePeople v Samms, 95 NY2d 52, 57-58 [2000]), we conclude that this case "presents aproper basis for exercising our interest-of-justice jurisdiction" (People v Assadourian, 19AD3d 207, 208 [2005], lv denied 5 NY3d 785 [2005]; see People v Marrero, 2 AD3d107, 107 [2003], affd 3 NY3d 762 [2004]). We therefore modify thejudgment in each appeal by vacating the sentence and remit the matter to Supreme Courtto resentence defendant (see Williams, 49 AD3d at 1184).
The remaining contention in each appeal regarding the severity of the sentence ismoot (see People v Clayton,38 AD3d 1131, 1131-1132 [2007], lv denied 9 NY3d 841 [2007]).Present—Smith, J.P., Carni, Sconiers and Valentino, JJ.