People v. McFadden

Appellate Division of the Supreme Court of New York

People v. McFadden

28 A.D.3d 1245, 812 N.Y.S.2d 914

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2006

StatusPublished

Cited by5 cases

This text of 28 A.D.3d 1245 (People v. McFadden) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McFadden, 28 A.D.3d 1245, 812 N.Y.S.2d 914 (N.Y. Ct. App. 2006).

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Opinion

Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered June 14, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]), defendant contends that the judgment must be reversed because that crime is a legal impossibility. We disagree. “Although the crime of attempted assault in the second degree pursuant to Penal Law § 120.05 (3) is a legal impossibility (see, People v Campbell, 72 NY2d 602, 607), a defendant may plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed” (People v Daniels, 237 AD2d 298, 298 [1997], lv denied 90 NY2d 857 [1997]; see e.g. People v Downs, 26 AD3d 525 [2006]; People v Guishard, 15 AD3d 731, 732 [2005], lv denied 5 NY3d 789 [2005]; see generally People v Foster, 19 NY2d 150 [1967]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Fine, JJ.

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Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered June 14, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]), defendant contends that the judgment must be reversed because that crime is a legal impossibility. We disagree. “Although the crime of attempted assault in the second degree pursuant to Penal Law § 120.05 (3) is a legal impossibility (see, People v Campbell, 72 NY2d 602, 607), a defendant may plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed” (People v Daniels, 237 AD2d 298, 298 [1997], lv denied 90 NY2d 857 [1997]; see e.g. People v Downs, 26 AD3d 525 [2006]; People v Guishard, 15 AD3d 731, 732 [2005], lv denied 5 NY3d 789 [2005]; see generally People v Foster, 19 NY2d 150 [1967]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Smith and Fine, JJ.

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Bluebook (online)

28 A.D.3d 1245, 812 N.Y.S.2d 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcfadden-nyappdiv-2006.

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