PEOPLE v. 374 16 (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Stephen Braslow, J.), rendered June 21, 2016, convicting him of vehicular assault in the second degree, attempted assault in the second degree, leaving the scene of an accident in violation of Vehicle and Traffic Law § 600(2), and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(2), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of attempted assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the superior court information; as so modified, the judgment is affirmed.

The crime of attempted assault in the second degree is a legal impossibility (see Penal Law § 120.05[3]; People v. Campbell, 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86; People v. Tucker, 151 A.D.3d 1085, 1086, 58 N.Y.S.3d 461; People v. Barksdale, 139 A.D.3d 1080, 30 N.Y.S.3d 849; People v. Grant, 73 A.D.3d 1079, 1080, 899 N.Y.S.2d 906).  As correctly conceded by the People, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant's conviction of attempted assault in the second degree, vacatur of the sentence imposed thereon, and dismissal of that count of the superior court information (see CPL 195.20; People v. Zanghi, 79 N.Y.2d 815, 817–818, 580 N.Y.S.2d 179, 588 N.E.2d 77; People v. Barksdale, 139 A.D.3d at 1080, 30 N.Y.S.3d 849; see also People v. Lopez, 45 A.D.3d 493, 494, 846 N.Y.S.2d 164).

The defendant's valid waiver of the right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344; People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145) precludes appellate review of his remaining contention (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022).

MASTRO, J.P., RIVERA, HINDS–RADIX and IANNACCI, JJ., concur.