           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

254
KA 13-01573
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

REYMUNDO NIEVES-ROJAS, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


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.


     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 of guilty, of attempted burglary in
the second degree (two counts).

     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
judgment is affirmed, and the matter is remitted to Supreme Court,
Erie County, for further proceedings in accordance with the same
memorandum as in People v Nieves-Rojas ([appeal No. 1] ___ AD3d ___
[Mar. 20, 2015]).




Entered:   March 20, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
