PEOPLE v. MCFADDEN

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05), defendant contends that the judgment must be reversed because that crime is a legal impossibility. We disagree. "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 NY2d 602, 607), 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" ( People v. Daniels, 237 AD2d 298, 298, lv denied 90 NY2d 857; see e.g. People v. Downs, 26 AD3d 525; People v. Guishard, 15 AD3d 731, 732, lv denied 5 NY3d 789; see generally People v. Foster, 19 NY2d 150).