Opinion
August 26, 1991
Appeal from the County Court, Suffolk County (Sherman, J.).
Ordered that the judgment is modified, on the law, by reversing the defendant's conviction of kidnapping in the second degree, vacating the sentence imposed thereon, and thereupon dismissing count two of the indictment; as so modified, the judgment is affirmed insofar as appealed from.
The defendant was indicted as a juvenile offender (see, CPL 1.20; see also, Penal Law § 30.00) for attempted murder in the second degree and assault in the first degree (two counts). In addition, because the defendant committed acts constituting kidnapping in the second degree during the course of the same criminal transaction, a count charging him with that crime was properly included in the indictment (see, CPL 200.20), notwithstanding that, because of his age, the defendant was not criminally responsible for that conduct (see, Penal Law § 30.00). Although the County Court was empowered to accept a plea of guilty to those counts of the indictment for which the defendant was criminally responsible (see, CPL 220.10, [5] [g]), it was not authorized to accept a plea of guilty to kidnapping in the second degree (see, CPL 220.10, [5] [g]; cf., People v Bartley, 47 N.Y.2d 965; People v Hicks, 79 A.D.2d 887). The challenged portion of the defendant's plea, which the People do not claim is an integral part of a nonseverable plea bargain (cf., People v Bartley, supra), must accordingly be set aside and deemed a nullity (cf., CPL 310.85). However, there is no basis for disturbing the sentences imposed for assault in the first degree, for which the defendant was criminally responsible (see, People v Kazepis, 101 A.D.2d 816; People v Suitte, 90 A.D.2d 80). Bracken, J.P., Kooper, Harwood and Balletta, JJ., concur.