Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered August 20, 2013. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the same memorandum as in People v Nieves-Rojas ([appeal No. 1] 126 AD3d 1373 [2015]).
Present — Smith, J.P., Carni, Sconiers and Valentino, JJ.