
    The People of the State of New York, Respondent, v. Richard Maxwell, Also Known as Henry R. Ivey, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 28, 1963 on his plea of guilty convicting him of assault in the second degree, and sentencing him to serve a term of 1 year and 6 months to 3 years in a State prison. Judgment reversed on the law; plea of guilty vacated, and action remitted to the trial court for further proceedings not inconsistent herewith. No questions of fact have been considered. Defendant had been indicted for criminal negligence in the operation of a motor vehicle resulting in death (Penal Law, § 1053-a) and for driving a motor vehicle while intoxicated, as a misdemeanor. Upon recommendation of the District Attorney pursuant to statute (Code Grim. Pro., § 342-a), the defendant pleaded guilty to assault in the second degree (Penal Law, § 242). In our opinion, the court did not have jurisdiction to accept the plea made, nor to render judgment thereon, because assault in the second degree is neither a crime of a lesser degree than the crime charged nor one for which a lesser punishment is prescribed (Penal Law, §§ 243,1053-b; cf. Matter of McDonald v. Sob el, 272 App. Div. 455, affd. 297 N. Y. 679). Beldock, P. J., Ughetta, Christ, Hopkins and Benjamin, JJ., concur.  