Opinion
April 14, 1989
Appeal from the Orleans County Court, Miles, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Lawton, JJ.
Judgment unanimously reversed on the law, plea vacated and matter remitted to Orleans County Court for further proceedings on the indictment. Memorandum: Defendant was charged with one count of reckless endangerment in the first degree (Penal Law § 120.25) for discharging a rifle while riding in a friend's vehicle. He entered a plea of guilty to one count of criminal mischief in the third degree (Penal Law § 145.05) in satisfaction of the indictment.
Criminal mischief in the third degree is not a lesser included offense of reckless endangerment (see, CPL 1.20; 220.20). The People concede that defendant entered a plea to a charge which is not a lesser included offense of the crime charged, and that the plea must be vacated (see, People v. Williams, 44 A.D.2d 216, 217; see also, CPL 220.10).