People v Tate (Earl)

[*1] People v Tate (Earl) 2018 NY Slip Op 51339(U) Decided on September 21, 2018 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 21, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
570111/14

The People of the State of New York, Respondent,

against

Earl Tate, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Alexander M. Tisch, J.), rendered December 9, 2013, convicting him, upon a plea of guilty, of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Alexander M. Tisch, J.), rendered December 9, 2013, affirmed.

Defendant argues that the accusatory instrument was jurisdictionally defective as to the third-degree assault charge (Penal Law § 120.00) to which he pleaded guilty. Significantly, however, the only relief defendant requests is dismissal of the entire accusatory instrument. Since it cannot be said that no penological purpose would be served by remanding the matter to Criminal Court for further proceedings on the remaining class A misdemeanor offense (forcible touching) charged therein (see People v Allen, 39 NY2d 916, 918 [1976]), dismissal is not warranted and therefore we affirm on this basis.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 21, 2018