Contrary to the defendant's contention, his plea of guilty to attempted assault in the second degree under Penal Law § 120.05(3) was not invalid. Although that crime is a legal impossibility ( seePeople v. Campbell, 72 N.Y.2d 602, 607, 535 N.Y.S.2d 580, 532 N.E.2d 86 ; People v. Nieves, 73 A.D.3d 1087, 900 N.Y.S.2d 683 ), a defendant may plead guilty to a legally impossible, nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed ( seePeople v. Tiger, 32 N.Y.3d 91, 101, 85 N.Y.S.3d 397, 110 N.E.3d 509 ; People v. Foster, 19 N.Y.2d 150, 152–153, 278 N.Y.S.2d 603, 225 N.E.2d 200 ; People v. Daniels, 237 A.D.2d 298, 654 N.Y.S.2d 799 ). Here, since the defendant pleaded guilty to attempted assault in the second degree under Penal Law § 120.05(3) in satisfaction of an indictment charging a crime for which a greater penalty could be imposed, the plea of guilty was valid ( seePeople v. Mayo, 77 A.D.3d 683, 684, 908 N.Y.S.2d 353 ; People v. Daniels, 237 A.D.2d at 298, 654 N.Y.S.2d 799 ).

People v. Wyrich , 259 A.D.2d 718, 718, 686 N.Y.S.2d 853 (2d Dep't 1999) (internal quotation omitted). Although a defendant may “plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed,” see People v. Daniels , 237 A.D.2d 298, 298, 654 N.Y.S.2d 799 (2d Dep't 1997), here, Luckelson did not plead guilty to the nonexistent crime of attempted assault in the second degree, but rather, was initially charged with that crime. It stands to reason that a Felony Complaint solely charging a nonexistent crime can serve as a basis for a malicious prosecution claim.

Ordered that the judgment is modified, on the law, and the facts, by vacating the conviction of attempted assault in the second degree as a hate crime under count two of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. As the defendant contends, and the People correctly concede, the crime of attempted assault in the second degree under Penal Law § 120.05 (3) is "a legal impossibility" ( People v Campbell, 72 NY2d 602, 607; see People v Wyrich, 259 AD2d 718; People v Daniels, 237 AD2d 298). Therefore, the defendant's conviction of attempted assault in the second degree as a hate crime, under count two of the indictment, must be vacated, and that count of the indictment must be dismissed.

We disagree. "Although the crime of attempted assault in the second degree pursuant to Penal Law § 120.05 (3) is a legal impossibility ( see, People v. Campbell, 72 NY2d 602, 607), a defendant may plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed" ( People v. Daniels, 237 AD2d 298, 298, lv denied 90 NY2d 857; see e.g. People v. Downs, 26 AD3d 525; People v. Guishard, 15 AD3d 731, 732, lv denied 5 NY3d 789; see generally People v. Foster, 19 NY2d 150).

As the defendant correctly argues, and the People concede, a defendant cannot be convicted of attempted assault in the second degree under Penal Law § 120.05 (3) because it is "a legal impossibility" (People v. Campbell, 72 N.Y.2d 602, 607; see also, People v. Daniels, 237 A.D.2d 298; People v. Perez, 218 A.D.2d 754). Therefore, the defendant's conviction of attempted assault in the second degree must be reversed.

Even assuming, for the sake of argument, that assault on a police officer constitutes a theoretically lesser included offense of the crime charged in the felony complaint, it is well settled that an attempt to commit the crime of assault on a police officer is a nonexistent crime since "one cannot have a specific intent to cause an unintended crime" ( People v Campbell, 72 NY2d 602, 605). As the People correctly argue, it is permissible for a defendant to "plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed" ( People v Daniels, 237 AD2d 298, 298, lv denied 90 NY2d 857 [emphasis added]). However, this principle does not apply to a plea to a superior court information since "[a] waiver of indictment and a departure from the constitutional safeguard and procedural sine qua non is available . . . only within the express authorization of the governing constitutional and statutory exception" ( People v Trueluck, 88 NY2d 546, 549).

Therefore, a person cannot attempt to commit assault by reckless conduct ( id.). Note, however, that a person may plead guilty to an otherwise nonexistent crime such as attempted assault in the second degree under Penal Law § 120.05 (4) in satisfaction of an indictment charging a crime with a heavier penalty ( see People v Foster, 19 NY2d 150 [1967]; People v Daniels, 237 AD2d 298 [2d Dept 1997]; People v McFadden, 28 AD3d 1245 [4th Dept 2006]).

On the other hand, when a crime is of a type that is impossible to attempt, a defendant may still plead guilty to the otherwise nonexistent attempt in the context of a bargained for plea, where the court is permitted to accept a negotiated plea to a hypothetical lesser offense. ( People v Foster, 19 NY2d 150; People v Daniels, 237 AD2d 298 [2d Dept 1997]; see also People v Johnson, 89 NY2d 905.) The issue here is whether the reduced charge of attempted receiving unlawful gratuities is proper.

By contrast, the decedent in the case at bar entered into a negotiated guilty plea to the crime of attempted assault in the second degree, thus resulting in a conviction for that crime. Since "a defendant may plead guilty to a non-existent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed" ( see People v. Daniels, 237 AD2d 298), an unappealed conviction for attempted assault in the second degree, despite its theoretical impossibility of commission, can serve as a legal predicate for other purposes, such as determining an individual's status as a second or persistent felony offender ( see People v. King, 175 AD2d 411; People v. Early, 173 AD2d 884). Accordingly, the court rejects defendants' argument that the decedent's "nonexistent crime" of attempted assault in the second degree cannot serve as a subject crime under CPLR 213-b.