Opinion
July 7, 1982
Appeal from the Criminal Court of the City of New York, Queens County, JOSEPH M. LANE, J.
William E. Hellerstein and Darren O'Connor for appellant.
John J. Santucci, District Attorney ( Gary S. Fidel and Richard G. Denzer of counsel), for respondent.
MEMORANDUM.
Judgment of conviction unanimously reversed, on the law, and complaint dismissed.
According to the indorsements on the court papers, on the People's motion and with the defendant's consent, the charges against defendant were reduced from jostling to attempted jostling and from resisting arrest to attempted resisting arrest and the matter was transferred from a jury to a nonjury part for trial. A nonjury trial was held at the close of which defendant moved to dismiss the attempted jostling charge on the ground that there is no such crime. The motion was denied and defendant was convicted of attempted jostling but acquitted of attempted resisting arrest.
On this appeal, defendant renews his contention that there is no such crime as attempted jostling. We agree. Jostling itself is an inchoate theft offense, aimed at the pickpocket who surreptitiously attempts to secure the personal property of his victim. It is in the nature of an attempt (see People v Thomas, 36 N.Y.2d 514, 517; People v Rivera, 105 Misc.2d 285; Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 165.25, pp 236-237). As such, there can be no such crime as attempted jostling. "[T]here cannot be an attempt to commit a crime which is itself a mere attempt to do an act or accomplish a result" ( People v Schmidt, 76 Misc.2d 976, 978; see 22 CJS, Criminal Law, § 74). Since a defendant cannot be convicted after trial of a nonexistent crime (see, e.g., People v Foster, 19 N.Y.2d 150; People v Brown, 21 A.D.2d 738; People v Hassin, 48 A.D.2d 705), the charge must be dismissed.
BUSCHMANN, J.P., HIRSCH and KUNZEMAN, JJ., concur.