Opinion
July 12, 2000.
Judgment, Supreme Court, New York County (Laura Ward, J.), rendered March 28, 2000, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him to an indeterminate term of 21/2 to 5 years incarceration, unanimously reversed, on the law, the plea vacated, and the matter remanded for further proceedings.
David J. Mudd, for respondent.
Sara Gurwitch, for defendant-appellant.
Before: Williams, J.P., Tom, Wallach, Buckley, Friedman, JJ.
The record establishes that the crime to which defendant pleaded guilty was criminal possession of a controlled substance in the fifth degree pursuant to Penal Law § 220.06(5). This crime was not charged in the accusatory instrument nor was it, for plea purposes, a lesser included offense of the charged crime (see, CPL § 220.20). In view of this, defendant's plea was jurisdictionally defective and must be vacated (see, People v. Johnson, 89 N.Y.2d 905).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.