Opinion
January 19, 1999.
Appeal from the Supreme Court, New York County (William Leibovitz, J., at first plea; Allen Alpert, J., at second plea; Michael Gross, J., at sentence).
As the People correctly concede, the waiver of indictment and the plea of guilty to the attempted third-degree sale count must be vacated as jurisdictionally defective, since the plea was entered to a crime that was of a higher degree than the crime charged in the superior court information, rather than being a lesser included offense ( see, People v. Johnson, 89 N.Y.2d 905, 907-908).
Concur — Williams, J.P., Wallach, Andrias and Saxe, JJ.