| People v Johnson |
| 2021 NY Slip Op 00865 |
| Decided on February 10, 2021 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 10, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
BETSY BARROS
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON
ANGELA G. IANNACCI, JJ.
2019-10905
(Ind. No. 17-00543)
v
Carl Johnson, appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered August 9, 2019, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, his plea of guilty to attempted assault in the second degree under Penal Law § 120.05(3) was not invalid. Although that crime is a legal impossibility (see People v Campbell, 72 NY2d 602, 607; People v Nieves, 73 AD3d 1087), a defendant may plead guilty to a legally impossible, nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed (see People v Tiger, 32 NY3d 91, 101; People v Foster, 19 NY2d 150, 152-153; People v Daniels, 237 AD2d 298). Here, since the defendant pleaded guilty to attempted assault in the second degree under Penal Law § 120.05(3) in satisfaction of an indictment charging a crime for which a greater penalty could be imposed, the plea of guilty was valid (see People v Mayo, 77 AD3d 683, 684; People v Daniels, 237 AD2d at 298).
RIVERA, J.P., BARROS, CONNOLLY, BRATHWAITE NELSON and IANNACCI, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court