| People v Cunningham |
| 2011 NY Slip Op 06041 [86 AD3d 859] |
| July 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DwayneCunningham, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Benjamin K. Bergman of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered October 21, 2008, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a controlled substance in the third degree, criminal possession of a controlledsubstance in the seventh degree and criminally using drug paraphernalia in the second degree.
After defendant's motion to dismiss on the ground that the People had violated his statutoryright to a speedy trial was denied (see CPL 30.30), he pleaded guilty to three chargescontained in the indictment, including one count of criminal possession of a controlled substancein the third degree. Defendant was later determined to be a second felony drug offender who hadbeen previously convicted of a violent felony, and was sentenced to six years in prison, plus threeyears of postrelease supervision (see Penal Law § 70.70 [1] [b], [c]; [4][a]).[FN1]Defendant now appeals, claiming that he was denied his statutory right to a speedy trial and wasimproperly classified for sentencing purposes as a second felony offender who had beenpreviously [*2]convicted of a prior violent felony (seePenal Law § 70.70 [4] [a], [b] [i]).
Initially, we note that when defendant entered his guilty plea "he forfeited his right to claimthat he was deprived of a speedy trial under CPL 30.30" (People v O'Brien, 56 NY2d1009, 1010 [1982]; see People vZakrzewski, 69 AD3d 1055 [2010], lv denied 15 NY3d 758 [2010]). As for hisclassification as a second felony drug offender who had been previously convicted of a priorviolent felony,[FN2]such classification was based on defendant's 1999 conviction for attempted criminal possessionof a weapon in the third degree (see Penal Law § 265.02 [former (4)]).[FN3]A plea of guilty to attempted criminal possession of a weapon in the third degree (seePenal Law § 265.02) is a violent felony offense if, when entered, the plea was to a " 'lessergrade' " of an offense in the indictment that qualifies as a violent felony (People vDickerson, 85 NY2d 870, 872 [1995], quoting CPL 220.20; see Penal Law §70.02 [1] [d]). Defendant argues that County Court should not have classified his priorconviction as a violent felony offense because the accusatory instrument used in that proceedingwas a superior court information—and not an indictment—and, as such, his guiltyplea to the lesser grade offense cannot qualify as a violent felony. We disagree. A "superior courtinformation has the same force and effect as an indictment and all procedures and provisions oflaw applicable to indictments are also applicable to superior court informations, except whereotherwise expressly provided" (CPL 200.15). Moreover, "[e]xcept as used in [a]rticle 190, theterm indictment shall include a superior court information" (CPL 200.10). Thus, defendant's pleato attempted criminal possession of a weapon in the third degree was properly determined to be aviolent felony offense (see Penal Law § 70.02 [1] [d]; People v Henry, 52 AD3d 841,843 [2008], lv denied 11 NY3d 789 [2008]).
Spain, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant also received asentence of a conditional discharge on his convictions for criminal possession of a controlledsubstance in the seventh degree and criminally using drug paraphernalia in the second degree.
Footnote 2: The uniform sentence andcommitment form improperly refers to defendant as a second violent felony offender.
Footnote 3: Penal Law § 265.02(former [4]) has since been repealed (see Penal Law § 265.02, as amended by L2006, ch 742, § 1) and subsequently removed from Penal Law § 70.02 (as amendedby L 2007, ch 7, § 32).