People v. Barksdale

139 A.D.3d 1080, 30 N.Y.S.3d 849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 2016
• Docket: 2015-05088
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Minihan, J.), rendered May 18, 2015, convicting him of criminal possession of stolen property in the fourth degree and attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of attempted assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the superior court information; as so modified, the judgment is affirmed.

As the People correctly concede, attempted assault in the second degree, as defined by subdivision (3) of Penal Law § 120.05, is a legal impossibility (see People v Campbell, 72 NY2d 602, 605 [1988]). As the People also correctly concede, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant’s conviction of attempted assault in the second degree and dismissal of that count of the superior court information (see CPL 195.20; People v Zanghi, 79 NY2d 815, 817-818 [1991]; see also People v Lopez, 45 AD3d 493, 494 [2007]).

Hall, J.P., Roman, Cohen and Connolly, JJ., concur.