As the People concede, defendant was improperly adjudicated a second felony offender since the statute upon which defendant's federal conviction was based ( 18 U.S.C. § 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 N.Y.2d 52, 57), 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 A.D.2d 440, lv denied 80 N.Y.2d 894; see also People v. Hunt, 162 A.D.2d 782, affd 78 N.Y.2d 932, cert denied 502 U.S. 964). 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 N.Y.2d 445, 452).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.