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People v. Lopez
45 A.D.3d 493
| N.Y. App. Div. | 2007
|
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Judgment, Supreme Court, Bronx County (Lawrence H. Bernstein, J.), rendered February 25, 2005, convicting defendant, upon his plea of guilty, to attempted murder in the second degree, and sentencing him to a term of eight years, unanimously reversed, on the law, the plea vacated, that count of the *494indictment dismissed, and the matter remanded for further proceedings on the remaining counts of the indictment.

Defendant pleaded guilty to a count of the indictment charging attempted depraved indifference murder, which, as both sides agree, is a nonexistent, legally impossible crime, in that one cannot attempt a crime in which the result does not require intent (see People v Campbell, 72 NY2d 602, 605 [1988]; People v Acevedo, 32 NY2d 807 [1973]). This was not a situation where a defendant pleaded guilty to a hypothetical crime under a valid count of the indictment (see People v Foster, 19 NY2d 150, 153 [1967]). Defendant’s plea to a nonexistent crime is a jurisdictional defect rendering the plea a nullity, and the proper remedy is remand for further proceedings on the remainder of the indictment (see People v Castillo, 30 AD3d 1118 [2006], affd 8 NY3d 959 [2007]; People v Trueluck, 219 AD2d 490 [1995], affd 88 NY2d 546 [1996]). Defendant requests this Court to “deem” his plea to be a plea to reckless endangerment in the first degree, rather than vacating the conviction and reinstating the other counts of the original indictment. However, since the conviction was on a jurisdictionally defective count, defendant’s suggested remedy would be unlawful. Concur—Lippman, P.J., Nardelli, Buckley, Gonzalez and Sweeny, JJ.

Case Details

Case Name: People v. Lopez
Court Name: Appellate Division of the Supreme Court of the State of New York
Date Published: Nov 29, 2007
Citation: 45 A.D.3d 493
Court Abbreviation: N.Y. App. Div.
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