People v. Lopez — 158 A.D.2d 718

Majority

p. 718

The People of the State of New York, Respondent, v Jose Lopez, Appellant.

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

p. 719

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.

Cases cited

People v. Morse 62 NY2d 205 N.Y. 1984-05-17 at 226 p. 718