People v Johnson, 2021 NY Slip Op 00865 [191 AD3d 801]
February 10, 2021
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Carl Johnson, Appellant.
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Andrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (William L. DeProspo, J.), rendered August 9, 2019, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, his plea of guilty to attempted assault in the second degree under Penal Law § 120.05 (3) was not invalid. Although that crime is a legal impossibility ( see People v Campbell , 72 NY2d 602, 607 [1988]; People v Nieves , 73 AD3d 1087 [2010]), a defendant may plead guilty to a legally impossible, nonexistent crime in satisfaction of an indictment charging a crime for which a greater penalty may be imposed ( see People v Tiger , 32 NY3d 91 , 101 [2018]; People v Foster , 19 NY2d 150, 152-153 [1967]; People v Daniels , 237 AD2d 298 [1997]). Here, since the defendant pleaded guilty to attempted assault in the second degree under Penal Law § 120.05 (3) in satisfaction of an indictment charging a crime for which a greater penalty could be imposed, the plea of guilty was valid ( see People v Mayo , 77 AD3d 683 , 684 [2010]; People v Daniels , 237 AD2d at 298). Rivera, J.P., Barros, Connolly, Brathwaite Nelson and Iannacci, JJ., concur..