PEOPLE v. DANIELS (1997)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. William DANIELS, Appellant.

Decided: March 03, 1997

Before ROSENBLATT, J.P., and COPERTINO, PIZZUTO, KRAUSMAN and FLORIO, JJ.

Stephen J. Pittari, White Plains, (David B. Weisfuse, of counsel), for appellant. Jeanine Pirro, District Attorney, White Plains (Mary E. Costello and Richard Longworth Hecht, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered October 11, 1995, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's argument that his plea was not knowing, intelligent, and voluntary is without merit. Although the crime of attempted assault in the second degree pursuant to Penal Law § 120.05(3) is a legal impossibility (see, People v. Campbell, 72 N.Y.2d 602, 607, 535 N.Y.S.2d 580, 532 N.E.2d 86), a defendant may plead guilty to a nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed (see, People v. Martinez, 81 N.Y.2d 810, 812, 595 N.Y.S.2d 376, 611 N.E.2d 277; People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200). Review of the record reveals that the defendant's plea was knowing, intelligent, and voluntary (see, People v. Foster, supra; People v. Barker, 221 A.D.2d 1018, 635 N.Y.S.2d 383).

MEMORANDUM BY THE COURT.

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