Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
As correctly conceded by the People, the defendant was improperly sentenced as a second violent felony offender. In People v Dickerson ( 85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in "the top count" of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02 (1) (d). Under Penal Law § 70.02 (1) (d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class P. violent felony offense only when the defendant is convicted of such charge as "a lesser included offense . . . as defined in section 220.20 of the criminal procedure law." CPL 220.20 (1) defines a "lesser included offense" as one where the defendant pleads "to an offense of lesser grade than one charged in a count of an indictment." "Thus, according to the plain statutory language, a class P. 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 NY2d at 872).
In 2000, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant's conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1) (d). Consequently, the defendant should not have been sentenced as a second violent felony offender ( see People v Dickerson, 85 NY2d at 872), and the matter must be remitted to the Supreme Court for resentencing ( see People v Banuchi, 304 AD2d 402, 403; People v Williams, 290 AD2d 570, 571).