| People v Betters |
| 2014 NY Slip Op 00253 [113 AD3d 934] |
| January 16, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJonathan C. Betters, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy Blatchley of counsel), forrespondent.
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 ofthe 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 fiveyears of probation. Subsequently, he sold oxycodone to an undercover police informantand was charged with a probation violation and indicted for criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in thethird degree. He admitted to violating his probation and, in satisfaction of the chargescontained in the indictment, pleaded guilty to criminal possession of a controlledsubstance in the fourth degree and waived his right to appeal. In accordance with the pleaagreement, his probation was revoked and he was sentenced as a second felony offenderto 1 to 3 years in prison on the burglary conviction and five years in prison, to befollowed by three years of postrelease supervision, on the criminal possession conviction,which sentences were to run concurrently. Defendant now appeals contending that hisguilty plea must be vacated because he allocuted to the crime of criminal possession of acontrolled substance in the third degree (Penal Law § 220.16 [1]), but pleadedguilty 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.[*2]
We affirm. Where an indictment charges morethan one offense, a defendant may plead guilty to a lesser included offense of any of thecharged offenses, with the permission of the court and the People (see CPL220.10 [4] [b]; People vCrandall, 39 AD3d 1077, 1077 [2007], lv denied 9 NY3d 874 [2007]).Criminal possession of a controlled substance in the fourth degree includes the elementof weight not included in the crime of criminal possession of a controlled substance inthe third degree and, therefore, is not a lesser included offense within the definition ofCPL 1.20 (37) (see People vAlverson, 79 AD3d 1787, 1787 [2010]). However, CPL 220.20 (1) (i) defineslesser included offenses for plea purposes and provides that, "[w]here the crimecharged is criminal possession of a controlled substance, any offense of criminalpossession of a controlled substance, in any degree, is deemed to constitute a lesserincluded offense." Notably, during the plea proceedings, defendant freely admitted topossessing oxycodone and clearly entered his plea of guilty to the charge of criminalpossession of a controlled substance in the fourth degree in reduction of the second countof the indictment, which charged him with criminal possession of a controlled substancein the third degree. Accordingly, we find no jurisdictional deficiencies in this plea.
Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.