The People of the State of New York, Respondent, v. Evelyn Jiminez, Also Known as Evely Givens, Also Known as Nancy Rodriguez, Appellant

The People of the State of New York, Respondent, v Evelyn Jiminez, Also Known as Evely Givens, Also Known as Nancy Rodriguez, Appellant. [682 NYS2d 845] [MAJORITY] —Judgment, Supreme Court, New York County (William Leibovitz, J., at first plea; Allen Alpert, J., at second plea; Michael Gross, J., at sentence), rendered November 6, 1997, convicting defendant, upon her plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing her, as a second felony offender, to a term of 3V2 to 7 years, unanimously reversed, on the law, the plea of guilty and waiver of indictment vacated, the superior court information dismissed, the felony complaint charging criminal sale of a controlled substance in the third degree reinstated, and the matter remanded for further proceedings. As the People correctly concede, the waiver of indictment and the plea of guilty to the attempted third-degree sale count must be vacated as jurisdictionally defective, since the plea was entered to a crime that was of a higher degree than the crime charged in the superior court information, rather than being a lesser included offense (see, People v Johnson, 89 NY2d 905, 907-908). Concur — Williams, J. P., Wallach, Andrias and Saxe, JJ.