DECISION & ORDER Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gary, J.), rendered September 8, 2017. The judgment, after a nonjury trial, convicted defendant of criminal trespass in the third degree and trespass, and imposed sentence. ORDERED that the judgment of conviction is modified, on the law and as a matter of discretion in the interest of justice, by vacating so much of the judgment as convicted defendant of trespass, vacating the sentence imposed thereon, and dismissing the count of the accusatory instrument charging that offense; as so modified, the judgment of conviction is affirmed. Defendant was charged in a superseding information with criminal trespass in the third degree (Penal Law §140.10 [a]), trespass (Penal Law §140.05), and theft of services (Penal Law §165.15 [3]), all arising out of the same incident. Thereafter, defendant moved to dismiss the count of the superseding information charging him with criminal trespass in the third degree as facially insufficient. The People opposed the motion, and, in an order dated August 14, 2017, the Criminal Court denied the motion, citing to People v. Phillips (53 Misc 3d 151[A], 2016 NY Slip Op 51693[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1149 [2017]), People v. Thiam (16 Misc 3d 136[A], 2007 NY Slip Op 51665[U] [App Term, 1st Dept 2007], lv denied 9 NY3d 993 [2007]), and People v. Marshall (187 Misc 2d 423 [App Term, 1st Dept 2000]), and finding that the factual allegations that defendant had entered the subway system without paying the lawful fare by jumping over a turnstile were sufficient to have charged him with criminal trespass in the third degree. Immediately prior to trial, the People dismissed the theft of services charge and filed a prosecutor’s information charging defendant with criminal trespass in the third degree and trespass. After the People rested their case, defense counsel twice moved for trial orders of dismissal, which motions were denied by the Criminal Court. Following the nonjury trial, the court found defendant guilty as charged, noting that the “only” issue was the credibility of the officer. The court sentenced defendant to 90 days of imprisonment on the conviction for criminal trespass in the third degree and 15 days of imprisonment on the conviction for trespass, to be served concurrently. On appeal, defendant contends that the count contained in the prosecutor’s information charging him with criminal trespass in the third degree was facially insufficient because the superseding information, the facts of which were used to support that charge, did not allege that he had entered an area that was “fenced or otherwise enclosed in a manner designed to exclude intruders,” as required pursuant to Penal Law §140.10 (a), and, that, in any event, the evidence was legally insufficient to prove his guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence. “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Case, 42 NY2d 98, 99 [1977]; see People v. Dumay, 23 NY3d 518, 522 [2014]; People v. Dreyden, 15 NY3d 100, 103 [2010]), and a prosecutor’s information, filed pursuant to CPL 100.50 (2), is defective when “the factual allegations of the original information underlying it and any supporting depositions are not legally sufficient to support the charge in the prosecutor’s information” (CPL 170.35 [3] [b]), or when it otherwise fails to conform to the requirements of CPL 100.35 (see CPL 100.40 [3]; People v. Hassan, 63 Misc 3d 158[A], 2019 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Moreover, since defendant did not waive the right to be prosecuted by information, the relevant counts of that accusatory instrument must be evaluated under the standards that govern an information (see People v. Hatton, 26 NY3d 364, 368 [2015]; People v. Kalin, 12 NY3d 225, 228 [2009]; Hassan, 63 Misc 3d 158[A], 2019 NY Slip Op 50838[U]; see also CPL 100.15, 100.40 [1]). To be facially sufficient, the factual allegations of an information, together with those of any supporting depositions, must “provide reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [1] [b]; see People v. Ocasio, 28 NY3d 178, 180 [2016]). While the law does not require that the information contain the most precise words or phrases most clearly expressing the charges, the offense and factual bases therefor must be sufficiently alleged (see People v. Konieczny, 2 NY3d 569, 575 [2004]). The Court of Appeals has recognized that charging discretion is available to the People for “turnstile jumping,” which can be prosecuted under various statutes, including trespass (Penal Law §140.05), criminal trespass in the third degree (Penal Law §140.10), and theft of services (Penal Law §165.15 [3]) (see People v. Mattocks, 12 NY3d 326, 334 n 2 [2009]). Consequently, the allegation that defendant entered a subway station beyond the turnstiles without having permission or authority to do so without paying the legal fare, as alleged here, is facially sufficient to support the charge of criminal trespass in the third degree (see People v. Davion T., 61 Misc 3d 144[A], 2018 NY Slip Op 51672[U] [App Term, 1st Dept 2018], lv denied 32 NY3d 1170 [2019]; People v. Robles, 61 Misc 3d 144[A], 2018 NY Slip Op 51671[U] [App Term, 1st Dept 2018], lv denied 32 NY3d 1209 [2019]; Phillips, 53 Misc 3d 151[A], 2016 NY Slip Op 51693[U]). Defendant’s challenge to the legal sufficiency of the evidence with respect to the charge of criminal trespass in the third degree lacks merit, as does his claim that the verdict with respect thereto was against the weight of the evidence. However, trespass is a lesser included offense of the charge of criminal trespass in the third degree (see CPL 1.20 [37]; Penal Law §§140.00, 140.05, 140.10; see generally People v. Glover, 57 NY2d 61, 63 [1982]; People v. Hoag, 51 NY2d 632, 634 [1981]). “A verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted, but not an acquittal thereon” (CPL 300.40 [3] [b]). In view of the foregoing, notwithstanding the fact that defendant did not raise this issue in the Criminal Court and does not raise it on appeal, as a matter of discretion in the interest of justice the conviction of trespass and the sentence imposed thereon are vacated and the count of the accusatory instrument charging that offense is dismissed (see CPL 470.15 [3] [c]; People v. Lee, 39 NY2d 388, 390 [1976]; People v. Grier, 37 NY2d 847, 848 [1975]; People v. Carrasco, 65 Misc 3d 5, 10 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v. Payne, 54 Misc 3d 138[A], 2017 NY Slip Op 50140[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Accordingly, the judgment of conviction is modified by vacating so much of the judgment as convicted defendant of trespass, vacating the sentence imposed thereon, and dismissing the count of the accusatory instrument charging that offense. ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur. Dated: April 23, 2021
