People v. Bethea

• Decision Date: 02 April 2009
• Docket Number: 101808.
• Citation: 2009 NY Slip Op 02488,874 N.Y.S.2d 920,61 A.D.3d 1016
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAHIIM BETHEA, Appellant.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 1016

874 N.Y.S.2d 920

2009 NY Slip Op 02488

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.RAHIIM BETHEA, Appellant.

101808.

Appellate Division of the Supreme Court of New York, Third Department.

Decided April 2, 2009.

Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered April 29, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

KANE, J.

To satisfy an 11-count indictment, defendant pleaded guilty to one count of criminal possession of a weapon in the third degree (seePenal Law § 265.02 [4]).He waived his right to appeal and County Court sentenced him to 3½ years in prison with postrelease supervision.Defendant appeals.

Penal Law § 265.02 (4) was repealed effective November 1, 2006, several months before this indictment was handed up (see L 2006, ch 742, § 1).Defendant thus pleaded guilty to a nonexistent crime, based on a jurisdictional defect in the indictment and this survives his guilty plea and waiver of appeal (seePeople v Case,42 NY2d 98, 100[1977];People v Lopez,45 AD3d 493, 494[2007]).Despite defendant's failure to raise the issue in his appellate brief, we reverse his judgment of conviction and dismiss that count of the indictment (seePeople v Davis,193 AD2d 954, 956[1993];see alsoPeople v Lopez,45 AD3d at 494).

MERCURE, J.P., PETERS, LAHTINEN and MALONE Jr., JJ., concur.

Ordered that the judgment is reversed, on the law, plea vacated, count two of the...