
    [821 NE2d 968, 788 NYS2d 663]
    The People of the State of New York, Appellant, v Jose Marrero, Respondent.
    Decided December 2, 2004
    APPEARANCES OF COUNSEL
    
      Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler and Joseph N. Ferdenzi of counsel), for appellant.
    
      
      Legal Aid Society, New York City (Richard Joselson and Laura R. Johnson of counsel), for respondent.
   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.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed in a memorandum.  