Opinion
70
April 15, 2003.
Judgment, Supreme Court, New York County (Michael Sonberg, J.), rendered March 15, 2000, convicting defendant, after a jury trial, of robbery in the second degree and grand larceny in the fourth degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life and 2 to 4 years, respectively, unanimously modified, on the law, to the extent of vacating the sentence and remanding the matter for resentencing as a second violent felony offender, and otherwise affirmed.
Sheryl Feldman, for respondent.
Robin C. Smith, for defendant-appellant.
Before: Andrias, J.P., Ellerin, Lerner, Friedman, Marlow, JJ.
The trial court erred in sentencing defendant as a persistent violent felony offender based upon his 1987 and 1991 convictions for attempted criminal possession of a weapon in the third degree under Penal Law § 110.00; § 265.02(1). Penal Law § 70.08(1)(a) requires that in order to be sentenced as a mandatory persistent violent felony offender, a defendant must have previously been convicted of two or more violent felony offenses as defined in Penal Law § 70.02 (see Penal Law § 70.02 [b]). Penal Law § 70.02(1)(d) provides that a conviction for attempted criminal possession of a weapon in the third degree is only a Class E violent felony offense when a defendant is convicted of the charge as a "lesser included" offense; i.e., an offense of a lesser grade than the one charged in a count of an indictment (CPL 220.20).
Since defendant's 1987 conviction for attempted criminal possession of a weapon in the third degree arose out of a plea to the top count of a Superior Court Information and not to the lesser included offense of a count of an indictment, the underlying crime could not be considered a violent felony offense (see People v. Dickerson, 85 N.Y.2d 870). Although the minutes of defendant's 1991 plea reveal that he admitted to the prior 1987 felony at that time, defendant did not expressly admit that it was a violent felony, and thus, defendant is not estopped on that issue. Under these circumstances, defendant had only one prior violent felony conviction in 1991 for attempted criminal possession of a weapon in the third degree. Since the sentence imposed was therefore facially improper, it is not necessary that it have been preserved by objection below (see People v. Samms, 95 N.Y.2d 52).
The challenged portions of the People's summation generally constituted fair comment on the evidence in response to defense counsel's arguments, and there was no pattern of egregious misconduct (see People v. Overlee, 236 A.D.2d 133, lv denied 91 N.Y.2d 976; People v. D'Alessandro, 184 A.D.2d 114, 118-119, lv denied 81 N.Y.2d 884). In any event, any part of the prosecutor's summation that may have been improper was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.