Opinion
March 11, 1993
Appeal from the County Court of Otsego County (Kepner, Jr., J.).
Defendant waived indictment and pleaded guilty to the crime of attempted murder in the second degree as charged in a superior court information. Defendant now maintains that the superior court information was jurisdictionally defective and that his conviction must be vacated. Initially, we find that defendant's waiver of his right to appeal does not preclude our consideration of his jurisdictional argument (see, People v Thompson, 152 A.D.2d 949, lv denied 74 N.Y.2d 820). Murder in the second degree as set forth under Penal Law § 125.25 (2) proscribes reckless conduct "which creates a grave risk of death to another person, and thereby causes the death of another person", "[u]nder circumstances evincing a depraved indifference to human life". The superior court information to which defendant pleaded guilty charged an attempt to commit this crime. Such a crime is nonexistent (see, People v. Acevedo, 32 N.Y.2d 807; People v. Terry, 104 A.D.2d 572). The superior court information was, therefore, jurisdictionally defective (see, People v Hassin, 48 A.D.2d 705; see also, People v. Trepanier, 84 A.D.2d 374, 380). While the People correctly argue that a defendant may plead guilty to hypothetical or nonexistent crimes (see, e.g., People v. Foster, 19 N.Y.2d 150, 153; People v. King, 175 A.D.2d 411, lv denied 78 N.Y.2d 1078), the instant case is distinguishable. Unlike the cases relied upon by the People, here the accusatory instrument upon which defendant is to be prosecuted itself charges a nonexistent crime and is thus invalid (cf., People v. Ford, 62 N.Y.2d 275, 282-283). Alternatively, because the crime charged in the information is not an offense, we find that the information was defective in that it failed to charge "any offense for which the defendant was held for the action of a grand jury" (CPL 195.20; see, People v. Zanghi, 79 N.Y.2d 815).
Weiss, P.J., Mikoll, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is reversed, on the law, and superior court information dismissed.