| People v Bethea |
| 2009 NY Slip Op 02488 [61 AD3d 1016] |
| April 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RahiimBethea, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kane, J. 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 criminalpossession of a weapon in the third degree.
To satisfy an 11-count indictment, defendant pleaded guilty to one count of criminalpossession of a weapon in the third degree (see Penal Law § 265.02 [4]). Hewaived his right to appeal and County Court sentenced him to 3½ years in prison withpostrelease supervision. Defendant appeals.
Penal Law § 265.02 (4) was repealed effective November 1, 2006, several monthsbefore this indictment was handed up (see L 2006, ch 742, § 1). Defendant thuspleaded guilty to a nonexistent crime, based on a jurisdictional defect in the indictment and thissurvives his guilty plea and waiver of appeal (see People v Case, 42 NY2d 98, 100[1977]; People v Lopez, 45 AD3d493, 494 [2007]). Despite defendant's failure to raise the issue in his appellate brief, wereverse his judgment of conviction and dismiss that count of the indictment (see People vDavis, 193 AD2d 954, 956 [1993]; see also People v Lopez, 45 AD3d at 494).
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, plea vacated, count two of the indictment dismissed, and matter remitted tothe County Court of Schenectady County for further proceedings not inconsistent with thisCourt's decision.