Opinion
May 29, 2007.
Judgment of resentence, Supreme Court, New York County (Lewis Bart Stone, J.), rendered June 30, 2005, resentencing defendant, upon his conviction of criminal possession of a controlled substance in the first degree, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 18 years, unanimously affirmed.
Before: Friedman, J.P., Sullivan, Sweeny, Catterson and McGuire, JJ.
In resentencing defendant pursuant to the 2004 Drug Law Reform Act, the court properly adjudicated defendant a "second felony drug offender whose prior felony conviction was a violent felony" (Penal Law § 70.71 [b]). The predicate felony was a 1981 conviction in Westchester County, where defendant had pleaded guilty to criminal possession of a weapon in the third degree (Penal Law § 265.02). Penal Law § 265.02 has several subdivisions, not all of which qualify as violent felonies (Penal Law § 70.02 [c]). The certificate of disposition issued in connection with this conviction did not specify the subdivision to which defendant pleaded guilty. However, the indictment contained only a single count, charging defendant with possession of a loaded firearm under Penal Law § 265.02 (4), which qualifies as a violent felony The evidence before the resentencing court established that defendant pleaded guilty to this single count, and that there was never any other indictment or superior court information filed in the Westchester case. There is no reasonable possibility that defendant pleaded guilty under a different subdivision than the one set forth in the indictment. The fact that defendant was not adjudicated a second violent felony offender at the time of his 1991 conviction on drug and weapon charges is satisfactorily explained, and does not cast any doubt on whether the 1981 conviction was for a violent felony. We have considered and rejected defendant's remaining arguments. [ See 8 Misc 3d 1026(A), 2005 NY Slip Op 512950(U).]