| People v Barksdale |
| 2016 NY Slip Op 04067 [139 AD3d 1080] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Barksdale, Appellant. |
John Brian Macreery, Katonah, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Minihan, J.), rendered May 18, 2015, convicting him of criminal possession of stolenproperty in the fourth degree and attempted assault in the second degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction ofattempted assault in the second degree, vacating the sentence imposed thereon, anddismissing that count of the superior court information; as so modified, the judgment isaffirmed.
As the People correctly concede, attempted assault in the second degree, as definedby subdivision (3) of Penal Law § 120.05, is a legal impossibility (seePeople v Campbell, 72 NY2d 602, 605 [1988]). As the People also correctlyconcede, the inclusion of that nonexistent crime in the superior court informationconstituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant'sconviction of attempted assault in the second degree and dismissal of that count of thesuperior court information (see CPL 195.20; People v Zanghi, 79 NY2d815, 817-818 [1991]; see alsoPeople v Lopez, 45 AD3d 493, 494 [2007]). Hall, J.P., Roman, Cohen andConnolly, JJ., concur.