
    The People of the State of New York, Respondent, v Jose Marrero, Appellant.
    [767 NYS2d 614]
   Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered April 16, 1999, convicting defendant, upon his plea of guilty, of robbery in the first degree (two counts), attempted robbery in the third degree and criminal sale of a controlled substance in the third degree (two counts) and sentencing him, as a second felony offender, to an aggregate term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the second felony offender adjudication and the sentences imposed and remanding for resentencing proceedings in accordance with the decision herein, and otherwise affirmed. Appeal from order, same court and Justice, entered on or about January 24, 2003, which denied defendant’s motion pursuant to CPL 440.20 to set aside the sentence, unanimously dismissed as academic in view of the foregoing.

As the People concede, defendant was improperly adjudicated a second felony offender since the statute upon which defendant’s federal conviction was based (18 USC § 641) proscribed broader conduct than its New York counterpart (Penal Law § 155.30). Although defendant failed to preserve this issue for review on direct appeal as a matter of law (People v Samms, 95 NY2d 52, 57 [2000]), we reach the issue in the interest of justice. Accordingly, we remand the matter for resentencing, at which time the People may allege a different prior felony conviction as the basis for a second felony offender adjudication (see People v Candelario, 183 AD2d 440 [1992], lv denied 80 NY2d 894 [1992]; see also People v Hunt, 162 AD2d 782 [1990], affd 78 NY2d 932 [1991], cert denied 502 US 964 [1991]). However, we reject the People’s argument that they should be permitted to withdraw their consent to the plea in the event that defendant is not again adjudicated a second felony offender based upon the existence of a different prior felony conviction (see Matter of Kisloff v Covington, 73 NY2d 445, 452 [1989]). Concur—Buckley, P.J., Saxe, Ellerin, Marlow and Gonzalez, JJ.  