Defendant's motion to vacate his 1994 conviction was properly denied on the basis of CPL 440.10(2)(c). A 440.10 motion may not be used as a device to take a belated appeal on an issue that appears on the face of the record (People v. Cooks, 67 N.Y.2d 100).
We find no basis upon which to disturb defendant's 1997 conviction. The alleged error in the 1994 conviction concerning the proper degree of auto stripping did not create a jurisdictional defect (see, People v. Taylor, 65 N.Y.2d 1) with respect to the 1997 conviction. We note that the 1997 indictment for auto stripping in the second degree (Penal Law § 165.10[1]) required a prior auto stripping conviction within five years, irrespective of whether the prior auto stripping was a felony or misdemeanor, and that the 1994 conviction satisfied that requirement. We have considered and rejected defendant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.