| People v Millazzo |
| 2015 NY Slip Op 03569 [127 AD3d 1237] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Millazzo, Appellant. |
Lynn W.L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Sharon Y. Brodt of counsel; Jonathan K. Yi on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J., at plea; Chin-Brandt, J., at sentence), rendered June 17, 2013, convicting himof attempted criminal possession of a weapon in the second degree, criminal possessionof a weapon in the fourth degree (two counts), and unlawful possession of pistolammunition, 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 SupremeCourt, Queens County, for resentencing as a second felony offender.
Contrary to the People's contention, under the circumstances of this case, thedefendant's contention that he was improperly sentenced as a second violent felonyoffender is not subject to the preservation rule (see People v Samms, 95 NY2d 52[2000]; People v Banuchi, 304 AD2d 402, 403 [2003]).
As correctly conceded by the People, the defendant was improperly sentenced as asecond violent felony offender. In People v Dickerson (85 NY2d 870, 871-872[1995]), the Court of Appeals determined that a plea of guilty to attempted criminalpossession of a weapon in the third degree, when charged in "the top count" of a superiorcourt information, did not constitute a violent felony pursuant to Penal Law§ 70.02 (1) (d). Under Penal Law § 70.02 (1) (d), the crime ofattempted criminal possession of a weapon in the third degree constitutes a class Eviolent felony offense only when the defendant is convicted of such charge as "a lesserincluded offense . . . as defined in section 220.20 of the criminal procedurelaw." CPL 220.20 (1) defines a "lesser included offense" as one where the defendantpleads "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 isreserved for accuseds who plead guilty to attempted criminal possession of a weapon inthe third degree as a lesser included offense under an indictment charging a greateroffense" (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendantentered a plea of guilty to attempted criminal possession of a weapon in the third degreeas the sole count of a superior court information. [*2]Therefore, the defendant's conviction of that crime, uponhis plea of guilty, did not constitute a violent felony pursuant to Penal Law§ 70.02 (1) (d) (seePeople v Caraballo, 79 AD3d 902, 903 [2010]; People v Banuchi, 304AD2d at 403). Consequently, the defendant should not have been adjudicated a secondviolent felony offender, and the matter must be remitted to the Supreme Court, QueensCounty, for resentencing (see People v Dickerson, 85 NY2d at 872; People vCaraballo, 79 AD3d at 903). Eng, P.J., Leventhal, Hall and Roman, JJ., concur.