Opinion
June 18, 1999
Appeal from Judgment of Erie County Court, Drury, J. — Attempted Criminal Possession Weapon, 3rd Degree.
PRESENT: GREEN, J. P., PINE, WISNER, HURLBUTT AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: After being held for Grand Jury action on the charge of criminal possession of a weapon in the third degree in violation of Penal Law § 265.02 (1), defendant waived indictment and pleaded guilty to attempted criminal possession of a weapon in the third degree (Penal Law § 110.00, 265.02 Penal [4]). We reject the contention of defendant that he was convicted of a violent felony offense and thus that the sentence of 1 1/3 to 4 years imprisonment is illegal ( see, Penal Law § 70.04 former [4]). "[A]ccording to the plain statutory language [of Penal Law § 70.02 (1) (d)], a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense" ( People v. Dickerson, 85 N.Y.2d 870, 872). We also reject defendant's contention that the sentence is unduly harsh or severe. Because defendant's notice of appeal limits the scope of the appeal to the sentence imposed, we do not address defendant's remaining contention ( see, Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 450.10, at 665-666; see also, People v. Wallace, 246 A.D.2d 676; People v. Stevens, 120 A.D.2d 553).