Opinion
December 7, 1992
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing.
By knowingly, intelligently, and voluntarily entering a plea of guilty in satisfaction of the charges contained in the indictment, the defendant has forfeited the right to challenge the indictment as having been obtained in violation of his rights to testify before the Grand Jury (see, People v Rose, 162 A.D.2d 240; People v Ferrara, 99 A.D.2d 257, 259). In any event, there is no basis in the record to find that it was error for the court to accept the defense counsel's offer to withdraw the defendant's pro se motion to dismiss the indictment without first inquiring of the defendant whether he concurred in his attorney's conduct. Notably, at no time did the defendant ever voice an objection that his attorney had disregarded his instructions concerning the pro se motion. Rather, at his plea proceedings, the defendant expressed his satisfaction with counsel's representation, and never moved to withdraw his plea. Accordingly, there is no basis to disturb the defendant's plea of guilty.
The defendant's remaining contentions challenging his plea of guilty are without merit (see, e.g., People v Witherspoon, 155 A.D.2d 636). "The fact that [the] defendant was not specifically advised of his right to contest the constitutional basis of his prior felony conviction does not constitute reversible error or indicate that he was denied the effective assistance of counsel" (People v West, 140 A.D.2d 852).
However, as the People concede, the defendant's adjudication and sentencing as a second felony offender must be vacated because his prior conviction in New Jersey for burglary in the third degree is not the equivalent of a conviction for a New York felony (see, People v Muniz, 74 N.Y.2d 464). Accordingly, the defendant's sentence must be vacated, and the matter remitted to the County Court for resentencing (see, People v Quinlan, 161 A.D.2d 280; People v Perry, 161 A.D.2d 1156). Prior to resentencing, if they be so advised, the People may seek to readjudicate the defendant a second felony offender based upon a different prior felony conviction (see, People v Candelario, 183 A.D.2d 440). Lawrence, J.P., Miller, O'Brien and Pizzuto, JJ., concur.