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THIRD-DEGREE POSSESSION OF A CONTROLLED SUBSTANCE (PENAL LAW 220.16 (12)) IS NOT A LESSER INCLUDED OFFENSE OF THIRD-DEGREE POSSESSION OF A CONTROLLED SUBSTANCE (PENAL LAW 220.16 (1)); GUILTY PLEA VACACTED (FIRST DEPT).

The First Department, reversing Supreme Court and vacating defendant’s guilty plea, determined defendant pled to an offense which was not a lesser included offense of any offense in the indictment:

… [W]here the indictment charges two or more offenses in separate counts, a defendant may enter a plea of guilty to one or more of the offenses charged and/or lesser included offenses thereof” … . “For plea purposes only, lesser included offenses include not only those qualifying as such under the general statutory definition of lesser included crimes (CPL 1.20[37]), but also the specifically enumerated extensions of the lesser included offense concept, set forth in CPL 220.20(1)(a)-(k)” … .

Third-degree possession of a controlled substance in violation of Penal Law § 220.16(12) is not a lesser included offense of third-degree possession in violation of Penal Law § 220.16(1). The former subsection was not charged in the indictment, does not qualify as a lesser included offense under the general statutory definition, and is not included in the class of crimes that are deemed lesser included offenses of criminal possession of a controlled substance pursuant to CPL 220.20(1)(i) … . People v Acosta, 2022 NY Slip Op 00509, First Dept 1-27-22

 

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