Opinion
July 18, 1991
Appeal from the County Court of Washington County (Berke, J.).
Defendant, an inmate at Great Meadow Correctional Facility in Washington County, pleaded guilty to five counts of attempted assault in the second degree in satisfaction of a 12-count indictment charging him with 10 counts of assault in the second degree (Penal Law § 120.05), criminal mischief and promoting prison contraband in the first degree.
It is legally impossible to commit the crime of attempted assault in the second degree (see, People v Campbell, 72 N.Y.2d 602, 605) and, because it is not a crime, it cannot be a lesser included offense (see, CPL 1.20; 220.20). While County Court thus lacked authority to accept this plea (CPL 220.10 [b]; see, People v Williams, 44 A.D.2d 216, 217-218; see also, People v Sicurella, 149 A.D.2d 983; People v Scott, 58 A.D.2d 661), defendant's acquiescence in the plea waived his right to complain of this infirmity (see, People v Ford, 62 N.Y.2d 275, 283; People v Liguori, 106 A.D.2d 404).
Mahoney, P.J., Levine, Mercure and Crew III, JJ., concur. Ordered that the judgment is affirmed.