Opinion
February 26, 1990
Appeal from the Supreme Court, Kings County (Goldberg, J.).
Ordered that the sentences are reversed, on the law, and the matters are remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
As the prosecution concedes, the sentencing court erred in adjudicating the defendant to be a second violent felony offender.
The predicate crime involved the defendant's prior plea of guilty to attempted criminal possession of a weapon in the third degree.
However, that crime constitutes a violent felony offense only when the defendant has been initially charged with criminal possession of a weapon in the third degree and pleads guilty to the attempted crime as a lesser included offense (see, Penal Law § 70.02 [d]; People v Morse, 62 N.Y.2d 205, 226). The defendant had been charged with the attempt to commit such crime rather than the completed offense. Therefore, the conviction did not constitute a violent felony offense.
The sentences must, therefore, be reversed and the matters remitted for resentencing on both indictments, at which time the People may file a second felony offender statement. Mollen, P.J., Kunzeman, Eiber and Sullivan, JJ., concur.