You are here: / / AS CHARGED IN THIS CASE, CRIMINAL TRESPASS THIRD IS NOT A LESSER INCLUDED...
,

AS CHARGED IN THIS CASE, CRIMINAL TRESPASS THIRD IS NOT A LESSER INCLUDED OFFENSE OF BURGLARY THIRD AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminal trespass third conviction, determined the judge should not have instructed the jury on that offense as a lesser included offense of burglary third degree:

“To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a [party] must establish ‘that it is theoretically impossible to commit the greater crime without at the same time committing the lesser’ ” … . As charged here, “[a] person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders” (Penal Law § 140.10 [a]). The plain language of that statute “clearly requires that both buildings and real property be fenced or otherwise enclosed in order to increase the level of culpability from trespass . . . to criminal trespass in the third degree” … . Inasmuch as that requirement is not an element of burglary in the third degree (see § 140.20), it is theoretically possible to commit burglary in the third degree without committing criminal trespass in the third degree under section 140.10 (a), and thus “a violation of that section cannot qualify as a lesser included offense of third-degree burglary” … . People v Newman, 2023 NY Slip Op 01621, Fourth Dept 3-24-23

Practice Point: As charged in this case, trespass third is not a lesser included offense of burglary third.

 

You might also like
QUESTIONS OF FACT WHETHER PLAINTIFF’S SON’S INVOLVEMENT IN A DRAG RACE PRECLUDED RECOVERY FOR HIS DEATH IN AN ACCIDENT (FOURTH DEPT).
Stipulation to a Reduced Tax Assessment Freezes the Assessment at the Reduced Level for Three Years by Operation of Statute
NEW YORK DID NOT HAVE SUBJECT MATTER JURISDICTION OVER A CUSTODY MATTER BECAUSE THE CHILD HAD NOT LIVED IN NEW YORK FOR SIX MONTHS AT THE TIME THE PROCEEDINGS WERE COMMENCED, NEW JERSEY STILL HAD JURISDICTION AT THAT TIME BECAUSE THE CHILD HAD BEEN REMOVED FROM NEW JERSEY LESS THAN SIX MONTHS BEFORE THE NEW YORK PROCEEDINGS WERE COMMENCED (FOURTH DEPT).
ALTHOUGH PLAINTIFF POSITIONED THE SCAFFOLD SUCH THAT IT TIPPED WHEN A WHEEL WENT THROUGH A HOLE IN A DRAIN GRATE, HE WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).
WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT).
EVIDENCE DID NOT SUPPORT NEGLECT FINDING BASED UPON CORPORAL PUNISHMENT (FOURTH DEPT).
THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT). ​
THE DISTINCTION BETWEEN DETERMINING THE VALIDITY OF AN AGREEMENT TO ARBITRATE, THE COURT’S ROLE, AND THE INTERPRETATION OF A PROVISION IN THE AGREEMENT, THE ARBITRATOR’S ROLE, EXPLAINED; THE MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

​ A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED... THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING...