People v. King
| Citation | 175 A.D.2d 411,572 N.Y.S.2d 105 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Perry KING, Appellant. |
| Decision Date | 18 July 1991 |
| Court | New York Supreme Court — Appellate Division |
Patrick E. Barber, Fort Edward, for appellant.
Robert M. Winn, Dist. Atty. (Kevin C. Kortright, of counsel), Hudson Falls, for respondent.
Before MAHONEY, P.J., and YESAWICH, LEVINE, MERCURE and CREW, JJ.
Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered February 7, 1990, convicting defendant upon his plea of guilty of five counts of the crime of attempted assault in the second degree.
Defendant, an inmate at Great Meadow Correctional Facility in Washington County, pleaded guilty to five counts of attempted assault in the second degree in satisfaction of a 12-count indictment charging him with 10 counts of assault in the second degree (Penal Law § 120.05[3], criminal mischief and promoting prison contraband in the first degree.
It is legally impossible to commit the crime of attempted assault in the second degree (see, People v. Campbell, 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86) and, because it is not a crime, it cannot be a lesser included offense (see, CPL 1.20[37], 220.20). While County Court thus lacked authority to accept this plea (CPL 220.10[4][b]; see, People v. Williams, 44 A.D.2d 216, 217-218, 354 N.Y.S.2d 213; see also, People v. Sicurella, 149 A.D.2d 983, 543 N.Y.S.2d 352; People v. Scott, 58 A.D.2d 661, 395 N.Y.S.2d 522), defendant's acquiescence in the plea waived his right to complain of this infirmity (see, People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Liguori, 106 A.D.2d 404, 482 N.Y.S.2d 325).
ORDERED that the judgment is affirmed.
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