People v. Miernik

—Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]) charged under separate superior court informations. Both informations accused defendant of using the same stolen credit card on the same day, but at different locations. Although defendant forfeited the right to raise a statutory claim of double jeopardy (see, CPL 40.20) when he pleaded guilty to the offenses, his guilty plea did not extinguish his constitutional claim of double jeopardy (see, People v Prescott, 66 NY2d 216, 218, cert denied 475 US 1150). We agree with defendant that the offense of criminal possession of stolen property in the fourth degree was a continuing offense for which he could be prosecuted only once (see, Matter of Johnson v Morgenthau, 69 NY2d 148, 149-152; People v Agard, 199 AD2d 401, 403, lv denied 83 NY2d 868). We thus reverse the judgment in appeal No. 2, vacate the plea 920 and dismiss the corresponding superior court information. (Appeal from Judgment of Genesee County Court, Noonan, J.— Criminal Possession Stolen Property, 4th Degree.) Present— Pine, J. P., Hayes, Hurlbutt, Scudder and Lawton, JJ.