PEOPLE v. NEISCHER (2022)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J.), rendered August 26, 2019, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

On appeal, the defendant challenges only his designation as a violent felony offender pursuant to Penal Law § 70.02(1)(d) and CPL 220.20(1).

In the instant case, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree under a superior court information charging the greater offense of criminal possession of a weapon in the third degree.  Since attempted criminal possession of a weapon in the third degree was not charged as the only count or the top count, but rather, was a lesser-included offense of the only count in the superior court information, the defendant's conviction of that offense constitutes a conviction of a class E violent felony offense (see Penal Law § 70.02[1][d];  CPL 220.20[1]).  Accordingly, the defendant's contention that he should not have been sentenced as a violent felony offender is without merit (see People v. Dargan, 101 A.D.3d 1143, 1144, 956 N.Y.S.2d 551;  People v. Henry, 52 A.D.3d 841, 843–844, 860 N.Y.S.2d 619;  cf.  People v. Dickerson, 85 N.Y.2d 870, 626 N.Y.S.2d 50, 649 N.E.2d 1194).

DILLON, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.