Opinion
05-25-2016
The PEOPLE, etc., respondent, v. Robert BARKSDALE, appellant.
John Brian Macreery, Katonah, NY, for appellant. James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
John Brian Macreery, Katonah, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Minihan, J.), rendered May 18, 2015, convicting him of criminal possession of stolen property in the fourth degree and attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of attempted assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the superior court information; as so modified, the judgment is affirmed.
As the People correctly concede, attempted assault in the second degree, as defined by subdivision (3) of Penal Law § 120.05, is a legal impossibility (see People v. Campbell, 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86 ). As the People also correctly concede, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant's conviction of attempted assault in the second degree and dismissal of that count of the superior court information (see CPL 195.20 ; People v. Zanghi, 79 N.Y.2d 815, 817–818, 580 N.Y.S.2d 179, 588 N.E.2d 77 ; see also People v. Lopez, 45 A.D.3d 493, 494, 846 N.Y.S.2d 164 ).
HALL, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.