
    The People of the State of New York, Respondent, v David Johnson, Appellant.
    [764 NYS2d 621]
   —Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered February 15, 2002, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of six years to life, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and reducing the sentence to five years to life, and otherwise affirmed.

As the People concede, defendant was improperly adjudicated a second felony offender. In determining that defendant’s Massachusetts conviction was for the equivalent of a New York felony, the sentencing court improperly relied upon factual recitals contained in a different count of the Massachusetts accusatory instrument from the count upon which defendant had actually been convicted (see People v Muniz, 74 NY2d 464 [1989]).

Defendant’s valid waiver of his right to appeal forecloses review of his suppression claims (People v Kemp, 94 NY2d 831 [1999]). Concur — Buckley, P.J., Nardelli, Tom, Mazzarelli and Gonzalez, JJ.  