THE PEOPLE OF THE STATE OF NEW YORK, Appellant,
v.
JOSE MARRERO, Respondent.
Court of Appeals of the State of New York.
Decided December 2, 2004.Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for appellant.
*763 Legal Aid Society, New York City (Richard Joselson and Laura R. Johnson of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur
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.
Order affirmed in a memorandum.