Presiding Justice Michael Pesce
O’Leary appealed from a judgment convicting him of third degree criminal trespass. He pleaded guilty to the charge in satisfaction of a complaint that also charged trespass and second degree criminal trespass. O’Leary argued the accusatory instrument was jurisdictionally defective regarding the third degree criminal trespass charge. The divided panel found the complaint failed to allege facts, aside from conclusory references to “posted rules and regulations governing entry and use of the…premises” and O’Leary’s failure to provide a legitimate reason for his presence, tending to support an inference he knew or had reason to know his presence in the stairwell constituted a trespass. It found as the misdemeanor complaint was jurisdictionally defective as the third degree trespass charge, the conviction was reversed, the guilty plea vacated, and the remaining counts reinstated. The dissent, while voting to reverse the judgment finding the instrument was facially insufficient, disagreed with the decision to vacate O’Leary’s guilty plea and reinstate the remaining charges. It stated once the charge was dismissed as insufficient, there was no reason for O’Leaery to believe the remaining charges would be reinstated, noting he only sought dismissal of the instrument on appeal.
