| People v Freeman |
| 2017 NY Slip Op 02948 [149 AD3d 555] |
| April 18, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Brian M. Freeman, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Joanne Legano Ross of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 25,2013, convicting defendant, upon his plea of guilty, of criminal trespass in the second degree,and sentencing him to a conditional discharge for a period of one year, with 25 days ofcommunity service, unanimously affirmed.
Defendant's guilty plea to a misdemeanor charge not included in the misdemeanor indictmentwas not jurisdictionally defective. The constitutional restriction preventing the State fromindicting a defendant on one felony and then accepting a plea to a different felony with nocommon factual or legal basis is inapplicable here, as defendant was charged with, and pleadedguilty to, misdemeanors (see People v Keizer, 100 NY2d 114, 119 [2003]).
Defendant's argument that his plea to a class A misdemeanor to satisfy an indictment alsocharging a class A misdemeanor was invalid under CPL 220.10 (3), which provides that adefendant "may . . . enter a plea of guilty of a lesser included offense," isunpreserved (see People v Manuel,143 AD3d 473 [1st Dept 2016], lv denied 28 NY3d 1147 [2017]), and we decline toreview it in the interest of justice. As an alternative holding, we also reject it on the merits.Defendant concedes he wanted to avoid the significant stigma of a conviction on the initial classA misdemeanor charge, an animal cruelty charge, and therefore pleaded guilty to second-degreetrespass, also a class A misdemeanor, even though there was no common factual or legalpredicate for that charge. Hence, "to the extent there was any statutory error [under CPL 220.10(3)], it was in defendant's favor" (People v Manuel, 143 AD3d at 474).
Furthermore, even if we were to conclude that defendant is entitled to vacatur of his plea, heexpressly declines that remedy, requesting instead an outright dismissal, which we findunwarranted, given defendant's conduct in the underlying incident. Concur—Friedman,J.P., Renwick, Moskowitz, Feinman and Kapnick, JJ.