People v. Sicurella

Appellate Division of the Supreme Court of New York

People v. Sicurella

149 A.D.2d 983, 543 N.Y.S.2d 352, 1989 N.Y. App. Div. LEXIS 6072

Appellate Division of the Supreme Court of the State of New York·Decided April 14, 1989·Published·Cited by 1 cases

Opinion

— 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 [37]; 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 AD2d 216, 217; see also, CPL 220.10 [3]). (Appeal from judgment of Orleans County Court, Miles, J.—criminal mischief, third degree.) Present—Dillon, P. J., Callahan, Doerr, Boomer and Lawton, JJ.

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— 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 [37]; 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 AD2d 216, 217; see also, CPL 220.10 [3]). (Appeal from judgment of Orleans County Court, Miles, J.—criminal mischief, third degree.) Present—Dillon, P. J., Callahan, Doerr, Boomer and Lawton, JJ.

People v. Sicurella, 149 A.D.2d 983, 543 N.Y.S.2d 352, 1989 N.Y. App. Div. LEXIS 6072 (N.Y. Ct. App. 1989).

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