Opinion
2014-01-16
The PEOPLE of the State of New York, Respondent, v. Jonathan C. BETTERS, Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), for respondent.
Lisa A. Burgess, Indian Lake, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, McCARTHY and GARRY, JJ.
LAHTINEN, J.P.
Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered March 29, 2012, (1) convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree, and (2) which revoked defendant's probation and imposed a sentence of imprisonment.
Defendant was convicted of burglary in the third degree and was sentenced to five years of probation. Subsequently, he sold oxycodone to an undercover police informant and was charged with a probation violation and indicted for criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. He admitted to violating his probation and, in satisfaction of the charges contained in the indictment, pleaded guilty to criminal possession of a controlled substance in the fourth degree and waived his right to appeal. In accordance with the plea agreement, his probation was revoked and he was sentenced as a second felony offender to 1 to 3 years in prison on the burglary conviction and five years in prison, to be followed by three years of postrelease supervision, on the criminal possession conviction, which sentences were to run concurrently. Defendant now appeals contending that his guilty plea must be vacated because he allocuted to the crime of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), but pleaded guilty to the crime of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ), which is not a lesser included offense.
We affirm. Where an indictment charges more than one offense, a defendant may plead guilty to a lesser included offense of any of the charged offenses, with the permission of the court and the People ( seeCPL 220.10[4][b]; People v. Crandall, 39 A.D.3d 1077, 1077, 832 N.Y.S.2d 828 [2007], lv. denied9 N.Y.3d 874, 842 N.Y.S.2d 786, 874 N.E.2d 753 [2007] ). Criminal possession of a controlled substance in the fourth degree includes the element of weight not included in the crime of criminal possession of a controlled substance in the third degree and, therefore, is not a lesser included offense within the definition of CPL 1.20(37) ( see People v. Alverson, 79 A.D.3d 1787, 1787, 913 N.Y.S.2d 458 [2010] ). However, CPL 220.20(1)(i) defines lesser included offenses for plea purposes and provides that, “[w]here the crime charged is criminal possession of a controlled substance, any offense of criminal possession of a controlled substance, in any degree, is deemed to constitute a lesser included offense.” Notably, during the plea proceedings, defendant freely admitted to possessing oxycodone and clearly entered his plea of guilty to the charge of criminal possession of a controlled substance in the fourth degree in reduction of the second count of the indictment, which charged him with criminal possession of a controlled substance in the third degree. Accordingly, we find no jurisdictional deficiencies in this plea.
ORDERED that the judgment is affirmed. STEIN, McCARTHY and GARRY, JJ., concur.