People v. Roe

CourtNew York Supreme Court Appellate Division
Citation595 N.Y.S.2d 121,191 A.D.2d 844
PartiesThe PEOPLE of the State of New York, Respondent, v. Dennis J. ROE, Appellant.
Decision Date11 March 1993

Paul J. Connolly, Albany, for appellant.

Michael V. Coccoma, Dist. Atty., Cooperstown, for respondent.



Appeal from a judgment of the County Court of Otsego County (Kepner Jr., J.), rendered February 24, 1992, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.

Defendant waived indictment and pleaded guilty to the crime of attempted murder in the second degree as charged in a superior court information. Defendant now maintains that the superior court information was jurisdictionally defective and that his conviction must be vacated. Initially, we find that defendant's waiver of his right to appeal does not preclude our consideration of his jurisdictional argument (see, People v. Thompson, 152 A.D.2d 949, 544 N.Y.S.2d 741, lv. denied 74 N.Y.2d 820, 546 N.Y.S.2d 578, 545 N.E.2d 892). Murder in the second degree as set forth under Penal Law § 125.25(2) proscribes reckless conduct "which creates a grave risk of death to another person, and thereby causes the death of another person", "[u]nder circumstances evincing a depraved indifference to human life". The superior court information to which defendant pleaded guilty charged an attempt to commit this crime. Such a crime is nonexistent (see, People v. Acevedo, 32 N.Y.2d 807, 345 N.Y.S.2d 555, 298 N.E.2d 691; People v. Terry, 104 A.D.2d 572, 479 N.Y.S.2d 278). The superior court information was, therefore, jurisdictionally defective (see, People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253; see also, People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829). While the People correctly argue that a defendant may plead guilty to hypothetical or nonexistent crimes (see, e.g., People v. Foster, 19 N.Y.2d 150, 153, 278 N.Y.S.2d 603, 225 N.E.2d 200; People v. King, 175 A.D.2d 411, 572 N.Y.S.2d 105, lv. denied 78 N.Y.2d 1078, 577 N.Y.S.2d 241, 583 N.E.2d 953), the instant case is distinguishable. Unlike the cases relied upon by the People, here the accusatory instrument upon which defendant is to be prosecuted itself charges a nonexistent crime and is thus invalid (cf., People v. Ford, 62 N.Y.2d 275, 282-283, 476 N.Y.S.2d 783, 465 N.E.2d 322). Alternatively, because the crime charged in the...

To continue reading

Request your trial
8 cases
  • People v. Adams
    • United States
    • New York Supreme Court Appellate Division
    • 28 Enero 2022 exception that does not apply here (see People v. Rucinski , 24 A.D.3d 1171, 1173, 808 N.Y.S.2d 511 [4th Dept. 2005] ; People v. Roe , 191 A.D.2d 844, 845, 595 N.Y.S.2d 121 [3d Dept. 1993] ), a conviction for a nonexistent offense constitutes a "fundamental" error that "cannot be waived"......
  • People v. Rossborough
    • United States
    • New York Supreme Court Appellate Division
    • 28 Diciembre 2012
    ...quoting People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656). In the case relied upon by defendant, People v. Roe (191 A.D.2d 844, 845, 595 N.Y.S.2d 121), the court determined that the SCI was jurisdictionally defective because it charged defendant with a nonexistent cri......
  • People v. Gannon, 109187
    • United States
    • New York Supreme Court Appellate Division
    • 13 Diciembre 2018
    ...that does not exist at the time that the act was committed (see People v. Bethea , 61 A.D.3d at 1017, 874 N.Y.S.2d 920 ; People v. Roe , 191 A.D.2d 844, 845, 595 N.Y.S.2d 121 [1993] ). Consequently, defendant's plea of guilty to sexual abuse in the first degree must be vacated and count 2 o......
  • People v. Nieves
    • United States
    • New York Supreme Court Appellate Division
    • 18 Mayo 2010
    ...jurisdictionally defective, since the single count contained therein charged the defendant with a nonexistent crime ( see People v. Roe, 191 A.D.2d 844, 845, 595 N.Y.S.2d 121). An attempt requires an intent to commit a specific crime ( see Penal Law § 110.00; People v. Terry, 104 A.D.2d 572......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT