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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEDWIN LOPEZ, Appellant.

Defendant pleaded guilty to a count of the indictment charging attempted depraved indifference murder, which, as both sides agree, is a nonexistent, legally impossible crime, in that one cannot attempt a crime in which the result does not require intent ( see People v Campbell, 72 NY2d 602, 605; People v Acevedo, 32 NY2d 807). This was not a situation where a defendant pleaded guilty to a hypothetical crime under a valid count of the indictment ( see People v Foster, 19 NY2d 150, 153). Defendant's plea to a nonexistent crime is a jurisdictional defect rendering the plea a nullity, and the proper remedy is remand for further proceedings on the remainder of the indictment ( see People v Castillo, 30 AD3d 1118, affd 8 NY3d 959; People v Trueluck, 219 AD2d 490, affd 88 NY2d 546). Defendant requests this Court to "deem" his plea to be a plea to reckless endangerment in the first degree, rather than vacating the conviction and reinstating the other counts of the original indictment. However, since the conviction was on a jurisdictionally defective count, defendant's suggested remedy would be unlawful.

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PEOPLE v. LOPEZ
(Nov 29, 2007)