People v. King

175 A.D.2d 411, 572 N.Y.S.2d 105, 1991 N.Y. App. Div. LEXIS 9857

Opinion

Yesawich Jr., J.

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered February 7, 1990, convicting defendant upon his plea of guilty of five counts of the crime of attempted assault in the second degree.

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 [3]), 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 NY2d 602, 605) and, because it is not a crime, it cannot be a lesser included offense (see, CPL 1.20 [37]; 220.20). While County Court thus lacked authority to accept this plea (CPL 220.10 [4] [b]; see, People v Williams, 44 AD2d 216, 217-218; see also, People v Sicurella, 149 AD2d 983; People v Scott, 58 AD2d 661), defendant’s acquiescence in the plea waived his right to complain of this infirmity (see, People v Ford, 62 NY2d 275, 283; People v Liguori, 106 AD2d 404).

Mahoney, P. J., Levine, Mercure and Crew III, JJ., concur. Ordered that the judgment is affirmed.