People v. Martinez

285 A.D.2d 387, 727 N.Y.S.2d 309, 2001 N.Y. App. Div. LEXIS 7356

Opinion

—Judgment, Supreme Court, New York County (Laura Ward, J.), rendered March 28, 2000, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him to an indeterminate term of 2V2 to 5 years incarceration, unanimously reversed, on the law, the plea vacated, and the matter remanded for further proceedings.

The record establishes that the crime to which defendant pleaded guilty was criminal possession of a controlled substance in the fifth degree pursuant to Penal Law § 220.06 (5). This crime was not charged in the accusatory instrument nor was it, for plea purposes, a lesser included offense of the charged crime (see, CPL 220.20). In view of this, defendant’s plea was jurisdictionally defective and must be vacated (see, People v Johnson, 89 NY2d 905). Concur — Williams, J. P., Tom, Wallach, Buckley and Friedman, JJ.