The opinion of the court was delivered by: Kane, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: February 18, 2009
Before: Mercure, J.P., Peters, Lahtinen, Kane and Malone Jr., JJ.
Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered April 29, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.
To satisfy an 11-count indictment, defendant pleaded guilty to one count of criminal possession of a weapon in the third degree (see Penal Law § 265.02 ). He waived his right to appeal and County Court sentenced him to 31/2 years in prison with postrelease supervision. Defendant appeals.
Penal Law § 265.02 (4) was repealed effective November 1, 2006, several months before this indictment was handed up (see L 2006, ch 742, § 1). Defendant thus pleaded guilty to a nonexistent crime, based on a jurisdictional defect in the indictment and this survives his guilty plea and waiver of appeal (see People v Case, 42 NY2d 98, 100 ; People v Lopez, 45 AD3d 493, 494 ). Despite defendant's failure to raise the issue in his appellate brief, we reverse his judgment of conviction and dismiss that count of the indictment (see People v Davis, 193 AD2d 954, 956 ; see also People v Lopez, 45 AD3d at 494).
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur.
ORDERED that the judgment is reversed, on the law, plea vacated, count 2 of the indictment dismissed, and matter remitted to the County Court of Schenectady County for further proceedings not inconsistent with this Court's decision.
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