People v. Lopez

158 A.D.2d 718, 552 N.Y.S.2d 165, 1990 N.Y. App. Div. LEXIS 2274

Opinion

As the prosecution concedes, the sentencing court erred in adjudicating the defendant to be a second violent felony offender.

The predicate crime involved the defendant’s prior plea of guilty to attempted criminal possession of a weapon in the third degree.

However, that crime constitutes a violent felony offense only when the defendant has been initially charged with criminal possession of a weapon in the third degree and pleads guilty to the attempted crime as a lesser included offense (see, Penal Law § 70.02 [1] [d]; People v Morse, 62 NY2d 205, 226). The defendant had been charged with the attempt to commit such crime rather than the completed offense. Therefore, the conviction did not constitute a violent felony offense.

The sentences must, therefore, be reversed and the matters remitted for resentencing on both indictments, at which time the People may file a second felony offender statement. Moflen, P. J., Kunzeman, Eiber and Sullivan, JJ., concur.