Opinion
2015-03-20
The PEOPLE of the State of New York, Respondent, v. Reymundo NIEVES–ROJAS, Defendant–Appellant. (Appeal No. 1.)
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ) and burglary in the third degree (§ 140.20) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of two counts of attempted burglary in the second degree (§§ 110.00, 140.25[2] ).
Defendant's contention in each appeal that he was denied effective assistance of counsel is foreclosed by his plea of guilty because he failed to allege that the plea bargaining 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 A.D.3d 1334, 1334, 885 N.Y.S.2d 794, lv. denied13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915; see People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055).
We agree with defendant, however, that he was improperly sentenced as a second violent felony offender in each appeal inasmuch as the predicate conviction, i.e., the New Jersey crime of burglary in the third degree, is not the equivalent of a New York felony ( see People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160; People v. Williams, 49 A.D.3d 1183, 1184, 856 N.Y.S.2d 356). Defendant raises this contention for the first time on appeal but, even assuming, arguendo, that he was required to preserve it for our review ( see People v. Samms, 95 N.Y.2d 52, 57–58, 710 N.Y.S.2d 310, 731 N.E.2d 1118), we conclude that this case “presents a proper basis for exercising our interest-of-justice jurisdiction” (People v. Assadourian, 19 A.D.3d 207, 208, 796 N.Y.S.2d 913, lv. denied5 N.Y.3d 785, 801 N.Y.S.2d 805, 835 N.E.2d 665; see People v. Marrero, 2 A.D.3d 107, 107, 767 N.Y.S.2d 614, affd.3 N.Y.3d 762, 788 N.Y.S.2d 663, 821 N.E.2d 968). We therefore modify the judgment in each appeal by vacating the sentence and remit the matter to Supreme Court to resentence defendant ( see Williams, 49 A.D.3d at 1184, 856 N.Y.S.2d 356).
The remaining contention in each appeal regarding the severity of the sentence is moot ( see People v. Clayton, 38 A.D.3d 1131, 1131–1132, 832 N.Y.S.2d 900, lv. denied9 N.Y.3d 841, 840 N.Y.S.2d 768, 872 N.E.2d 881).
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgmentis affirmed, and the matter is remitted to Supreme Court, Erie County, for further proceedings.