PEOPLE v. MELIANI (2022)

Judgment of conviction (Jonathan Svetkey, J.), rendered December 19, 2019, affirmed.

Defendant was charged in an accusatory instrument with criminal trespass in the third degree (see Penal Law § 140.10[a]), trespass (see Penal Law § 140.05), and disorderly conduct (see Penal Law § 240.20[1]). Pursuant to a plea agreement, defendant pleaded guilty to third-degree criminal trespass (see Penal Law § 140.10[a]) in exchange for a sentence of time served. On appeal, defendant challenges the facial sufficiency of the trespass charge to which he pleaded guilty. However, the only relief defendant requests is dismissal of the entire accusatory instrument rather than vacatur of the plea, and he expressly requests that this Court affirm the conviction if it does not grant a dismissal.

Even were we to accept defendant's contention that the third-degree trespass charge to which he pleaded guilty was jurisdictionally defective, we find that his specific request for dismissal of the remaining charges would not be an appropriate remedy. In view of the facts underlying the charges and defendant's criminal history, a penological purpose would be served by remanding the matter for further proceedings (see People v Conceicao, 26 NY3d 375, 385 n [2015]). We therefore affirm (see People v Thiam, 34 NY3d 1040, 1050 [2019, DiFiore, Ch. J., concurring] [“There is a legitimate concern that defendants charged in multi-count local court accusatory instruments should not be able to thwart the system by obtaining a swift and favorable plea agreement, only to belatedly raise a ‘jurisdictional’ challenge on direct appeal to the sufficiency of the factual allegations of one count in the instrument in order to seek a dismissal by the intermediate appellate court of the whole instrument in the interest of justice ․ To avoid such gamesmanship, the proper corrective remedy, plainly afforded by CPL 470.55, is a remittal to the trial court for further proceedings on the accusatory instrument”]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur