Opinion
2019–10905 Ind. No. 17–00543
02-10-2021
The PEOPLE, etc., respondent, v. Carl JOHNSON, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. ( Andrew R. Kass of counsel), for respondent.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. ( Andrew R. Kass of counsel), for respondent.
REINALDO E. RIVERA, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered August 9, 2019, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
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 ( see People 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 ( see People 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 ( see People 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 ).
RIVERA, J.P., BARROS, CONNOLLY, BRATHWAITE NELSON and IANNACCI, JJ., concur.