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People v. Bethea

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 2, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RAHIIM BETHEA, APPELLANT.

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.

MEMORANDUM AND ORDER

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 [4]). 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Penal Law § 265.02 (4) was repealed effective November 1, 2006, several months before this indictment was handed up (see L 2006, ch 742, § 1).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 [1977]; People v Lopez, 45 AD3d 493, 494 [2007]). 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 [1993]; 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.

20090402

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