| People v Lopez |
| 2007 NY Slip Op 09500 [45 AD3d 493] |
| November 29, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kedwin Lopez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Bryan C. Hughes of counsel), forrespondent.
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 indictment dismissed, and the matter remanded for further proceedings on theremaining counts of the indictment.
Defendant pleaded guilty to a count of the indictment charging attempted depravedindifference murder, which, as both sides agree, is a nonexistent, legally impossible crime, in thatone cannot attempt a crime in which the result does not require intent (see People vCampbell, 72 NY2d 602, 605 [1988]; People v Acevedo, 32 NY2d 807 [1973]). Thiswas not a situation where a defendant pleaded guilty to a hypothetical crime under a valid countof the indictment (see People v Foster, 19 NY2d 150, 153 [1967]). Defendant's plea to anonexistent crime is a jurisdictional defect rendering the plea a nullity, and the proper remedy isremand for further proceedings on the remainder of the indictment (see People v Castillo, 30 AD3d1118 [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 tobe a plea to reckless endangerment in the first degree, rather than vacating the conviction andreinstating the other counts of the original indictment. However, since the conviction was on ajurisdictionally defective count, defendant's suggested remedy would be unlawful.Concur—Lippman, P.J., Nardelli, Buckley, Gonzalez and Sweeny, JJ.