People v Marrero, 3 NY3d 762 (2004)

2004 NY Slip Op 08982 [3 NY3d 762]
December 2, 2004
Court of Appeals

[*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.

OPINION OF THE COURT

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.