PEOPLE v. FIELDS (2025)

Judgment, Supreme Court, New York County (Laurie Peterson, J., at plea;  Heidi Cesare, J., at sentencing), rendered April 25, 2019, convicting defendant of burglary in the third degree and criminal trespass in the third degree, and sentencing her to an aggregate term of 4 months, unanimously affirmed.

The charge of criminal trespass in the third degree was properly included in the Superior Court Information as a joinable lesser non-inclusory offense, alongside the triggering offense of burglary in the third degree, which was charged in the felony complaint (see People v. Pierce, 14 N.Y.3d 564, 571, 904 N.Y.S.2d 255, 930 N.E.2d 176 [2010];  People v. Perkins, 230 A.D.3d 977, 978, 218 N.Y.S.3d 300 [1st Dept. 2024]).  It is undisputed that both charges were “based upon the same act or upon the same criminal transaction” (CPL 200.20[2][a];  see CPL 195.20).

Defendant's request for dismissal of the criminal trespass charge in the interest of justice is foreclosed by her valid waiver (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020];  see also People v. Trulove, 238 A.D.3d 55, 61, 228 N.Y.S.3d 173 [1st Dept. 2025]).  As an alternative holding, we decline to dismiss defendant's lesser non-inclusory count of conviction.  Although it is well settled that this Court has the authority, under CPL 300.40(3)(a), to exercise its discretion to dismiss lesser non-inclusory counts that were submitted to the jury and resulted in a conviction (see People v. Mesa, 195 A.D.2d 422, 600 N.Y.S.2d 711 [1st Dept. 1993], lv denied 82 N.Y.2d 899, 610 N.Y.S.2d 166, 632 N.E.2d 476 [1993];  see also People v. Gaul, 63 A.D.2d 563, 404 N.Y.S.2d 603 [1st Dept. 1978], lv denied 45 N.Y.2d 780, 409 N.Y.S.2d 1037, 381 N.E.2d 172 [1978]), “Article 300 deals only with trials, and has no application to convictions obtained on plea of guilty” (People v. Walton, 41 N.Y.2d 880, 880–881, 393 N.Y.S.2d 979, 362 N.E.2d 610 [1977]).