PEOPLE v. MIERNIK (2001)

 Defendant pleaded guilty to two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45[2] ) charged under separate superior court informations.   Both informations accused defendant of using the same stolen credit card on the same day, but at different locations.   Although defendant forfeited the right to raise a statutory claim of double jeopardy (see, CPL 40.20) when he pleaded guilty to the offenses, his guilty plea did not extinguish his constitutional claim of double jeopardy (see, People v. Prescott, 66 N.Y.2d 216, 218, 495 N.Y.S.2d 955, 486 N.E.2d 813, cert. denied 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349).   We agree with defendant that the offense of criminal possession of stolen property in the fourth degree was a continuing offense for which he could be prosecuted only once (see, Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 149-152, 512 N.Y.S.2d 797, 505 N.E.2d 240;  People v. Agard, 199 A.D.2d 401, 403, 606 N.Y.S.2d 239, lv. denied 83 N.Y.2d 868, 613 N.Y.S.2d 129, 635 N.E.2d 298).   We thus reverse the judgment in appeal No. 2, vacate the plea and dismiss the corresponding superior court information.

Judgment unanimously affirmed.

MEMORANDUM: