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

253
KA 13-01572
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. 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.


     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 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 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 following
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 AD3d 1334, 1334, lv denied 13 NY3d
912; see People v Gleen, 73 AD3d 1443, 1444, lv denied 15 NY3d 773).

     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 NY2d 464, 467; People v Williams, 49 AD3d 1183,
1184). Defendant raises this contention for the first time on appeal
                                 -2-                           253
                                                         KA 13-01572

but, even assuming, arguendo, that he was required to preserve it for
our review (see People v Samms, 95 NY2d 52, 57-58), we conclude that
this case “presents a proper basis for exercising our interest-of-
justice jurisdiction” (People v Assadourian, 19 AD3d 207, 208, lv
denied 5 NY3d 785; see People v Marrero, 2 AD3d 107, 107, affd 3 NY3d
762). 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 AD3d at 1184).

     The remaining contention in each appeal regarding the severity of
the sentence is moot (see People v Clayton, 38 AD3d 1131, 1131-1132,
lv denied 9 NY3d 841).




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