PEOPLE v. JAVIER (2004)

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered February 4, 2002, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 and 3 to 6 years, unanimously affirmed.   Judgment, same court (William I. Mogulescu, J.), rendered April 11, 2002, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him, as a second felony offender, to a concurrent term of 8 years, unanimously reversed, on the law, the plea vacated, and the matter remanded for further proceedings.

 The prosecutor's summation did not deprive defendant of a fair trial.   The challenged remarks generally constituted fair comment on the evidence, and reasonable inferences to be drawn therefrom, in response to defense arguments (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).   While the prosecutor made several inappropriate comments, we find the error to be harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];  People v. D'Alessandro, 184 A.D.2d at 120, 591 N.Y.S.2d 1001).

 Defendant's plea of guilty must be vacated because assault in the first degree was not charged in the indictment (which charged attempted murder in the second degree, attempted assault in the first degree, and assault in the second degree), was not a lesser included offense of any crime charged in the indictment, and did not otherwise constitute a permissible offense for purposes of a guilty plea (CPL 220.10[4];  People v. Johnson, 89 N.Y.2d 905, 653 N.Y.S.2d 265, 675 N.E.2d 1217 [1996] ).