Opinion
2017–06020 Ind.No. 570/16
11-13-2019
The PEOPLE, etc., Respondent, v. Marquise I. WILLIAMS, Appellant.
Paul Skip Laisure, New York, NY, for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Vinnette K. Campbell of counsel), for respondent.
Paul Skip Laisure, New York, NY, for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, William H. Branigan, and Vinnette K. Campbell of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory Lasak, J.), rendered May 16, 2017, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith. The defendant should not have been sentenced as a persistent violent felony offender. In People v. Dickerson, 85 N.Y.2d 870, 871–872, 626 N.Y.S.2d 50, 649 N.E.2d 1194, the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in the top count of a superior court information, does not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as "a lesser included offense ... as defined in section 220.20 of the criminal procedure law." CPL 220.20(1) defines a "lesser included offense" as one where the defendant pleads guilty "to an offense of lesser grade than one charged in a count of an indictment." "Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense" ( People v. Dickerson , 85 N.Y.2d at 872, 626 N.Y.S.2d 50, 649 N.E.2d 1194 ). Here, in 2006, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant's conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d) (see People v. Coleman , 148 A.D.3d 717, 48 N.Y.S.3d 478 ; People v. Millazzo , 127 A.D.3d 1237, 8 N.Y.S.3d 363 ; People v. Caraballo , 79 A.D.3d 902, 903, 913 N.Y.S.2d 704 ). Consequently, the defendant should not have been adjudicated a persistent violent felony offender, and the matter must be remitted to the Supreme Court, Queens County, for resentencing, including a determination and adjudication of the defendant's status under article 400 of the Criminal Procedure Law (see People v. Dickerson , 85 N.Y.2d at 872, 626 N.Y.S.2d 50, 649 N.E.2d 1194 ; People v. Coleman , 148 A.D.3d 717, 48 N.Y.S.3d 478 ; People v. Millazzo , 127 A.D.3d 1237, 8 N.Y.S.3d 363 ).
In light of our determination, we need not reach the defendant's remaining contention.
CHAMBERS, J.P., MALTESE, LASALLE and CHRISTOPHER, JJ., concur.