Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Charles M. Troia, J.), rendered March 8, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal trespass in the third degree.

ORDERED that the judgment of conviction is reversed, on the law, the count of the accusatory instrument charging criminal trespass in the third degree is dismissed, the plea of guilty is vacated, the remaining counts of the accusatory instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.

Defendant waived his right to be prosecuted by an information and pleaded guilty to criminal trespass in the third degree in satisfaction of a misdemeanor complaint that charged, in addition to criminal trespass in the third degree in violation of Penal Law § 140.10 (a), criminal trespass in the second degree (Penal Law * 140.15 [1]) and trespass (Penal Law * 140.05). On appeal, defendant contends that the accusatory instrument was jurisdictionally defective with respect to the charge of criminal trespass in the third degree in violation of Penal Law * 140.10 (a).

To be facially sufficient, the factual part of a misdemeanor complaint must "contain a [*2]statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [3]) and which "provide reasonable cause to believe that the defendant committed the offense[s] charged in the accusatory part of such instrument" (CPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). An element of Penal Law § 140.10 (a) is that the building or real property where the offense was allegedly committed be "fenced or otherwise enclosed in a manner designed to exclude intruders." Although the factual part of the misdemeanor complaint alleged that the arresting officers discovered defendant in the stairwell of a New York City Housing Authority building, and contained a conclusory assertion, which merely tracked the language of the statute, that defendant knowingly trespassed on a premises that was "fenced" or "otherwise enclosed," the misdemeanor complaint contained insufficient facts of an evidentiary character which tend to support that element (see People v Moore, 5 NY3d 725, 727 [2005]; People v Rosano, 25 Misc 3d 129[A], 2009 Slip Op 52110[U] [App Term, 9th & 10th Jud Dists 2009]; People v O'Connor, 22 Misc 3d 140[A], 2009 NY Slip Op 50395[U] [App Term, 9th & 10th Jud Dists 2009]; People v Courtney, 15 Misc 3d 140[A], 2007 NY Slip Op 51000[U] [App Term, 1st Dept 2007]). Even if, as the People urge, we were to construe the accusatory instrument to allege a violation of subsection (e) of Penal Law § 140.10, rather than subsection (a), the complaint failed to allege facts, aside from conclusory references to "posted rules and regulations governing entry and use of the . . . premises" and defendant's failure to provide a "legitimate reason" for his presence, which tend to support an inference that defendant knew or had reason to know that his presence in the stairwell constituted a trespass (People v Basch, 36 NY2d 154, 159 [1975]; see e.g. People v Babarcich, 166 AD2d 655, 666 [1990]; People v Luke, 37 Misc 3d 73 [App Term, 1st Dept 2012]; People v Maresca, 19 Misc 3d 133[A], 2008 NY Slip Op 50663[U] [App Term, 1st Dept 2008]; People v Quinones, 2002 NY Slip Op 50091[U] [App Term, 1st Dept 2002]; cf. People v Flores, 21 Misc 3d 141[A], 2008 NY Slip Op 52371[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, as the misdemeanor complaint was jurisdictionally defective with respect to the charge of criminal trespass in the third degree, the judgment of conviction is reversed, the count of the misdemeanor complaint charging criminal trespass in the third degree is dismissed, the plea of guilty is vacated, the remaining counts of the misdemeanor complaint are reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.

Pesce, P.J., and Rios, J., concur.

Weston, J., concurs in part and dissents in part in a separate memorandum.

Weston, J., concurs in part and dissents in part and votes to reverse the judgment of conviction and, as a matter of discretion in the interest of justice, dismiss the accusatory instrument in the following memorandum:

While I agree with the majority that the accusatory instrument is facially insufficient with respect to the third degree criminal trespass charge, I disagree with the majority's decision to vacate defendant's guilty plea and reinstate the remaining charges. By reinstating the charges—the top count of which is a class A misdemeanor—the majority exposes defendant to a potentially harsher penalty than the one he received upon his guilty plea. I see no reason why [*3]defendant would exercise his right to appeal when by doing so successfully, he only subjects himself to the risk of an additional 364 days in jail. Defendant pleaded guilty at arraignment to criminal trespass in the third degree, a class B misdemeanor, in full satisfaction of the docket. Once that charge is dismissed as facially insufficient, there is no reason for defendant to believe that the remaining charges would be reinstated. Indeed, defendant on appeal seeks only dismissal of the accusatory instrument. In view of the fact that defendant committed a "relatively minor" offense and was sentenced to time already served (one day), "there would be little penological purpose to remitting the case for further proceedings" (People v White, 26 Misc 3d 144[A], 2010 NY Slip Op 50440[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, I vote to reverse the judgment of conviction and, as a matter of discretion in the interest of justice and judicial economy, dismiss the accusatory instrument.
Decision Date: December 09, 2013