People v. McFadden

Apr 28, 2006
Versions:28 A.D.3d 1245
812 N.Y.S.2d 914

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 Pine, JJ.