Robert S. Dean, Center for Appellate Litigation, New York (Nicolas Schumann-Ortega of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Benjamin E. Rosenberg of counsel), for respondent.

Judgment, Supreme Court, New York County (Patricia Nunez, J.), rendered May 23, 2013, as amended June 5, 2013, convicting defendant, after a jury trial, of criminal contempt in the second degree, and sentencing him to a term of one year, unanimously affirmed.

The court correctly concluded that criminal contempt in the second degree (Penal Law § 215.50) is a lesser included offense of criminal contempt in the first degree (Penal Law § 215.51), and it properly granted the People's request to submit second-degree contempt to the jury. Defendant's argument to the contrary is based on the "labor disputes" clause in Penal Law § 215.50, which does not appear in Penal Law § 215.51. Defendant argues that as a result, the statutory definition of a lesser included offense is not satisfied, because it is possible for a person to commit first-degree criminal contempt but not "concomitantly commit[ ], by the same conduct," second-degree contempt (CPL 1.20 [37]). This would be the case where, with the mental state required for first-degree criminal contempt, a person violates an order of protection arising out of a labor dispute.

Defendant's argument is contradicted by People v Santana (7 NY3d 234 [2006]), which held that "the reference to 'labor disputes' in the second-degree criminal contempt statute [does not] . . . create[ ] an exception that must be affirmatively pleaded as an element in the accusatory instrument, [but] rather . . . a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial" (id. at 236). While Santana addressed the adequacy of an accusatory instrument charging second-degree contempt, and did not involve a lesser included offense issue, the premise underlying the Court's holding controls here. The Santana Court determined that the labor disputes clause does not constitute a statutory element of the crime, and therefore that it did not have to be pleaded in the information. Here, the premise that the clause does not give rise to a statutory element undermines defendant's argument that it is possible to commit first-degree contempt without committing second-degree (see People v Mingo, 66 AD3d 1043 [2d Dept 2009], lv denied 14 NY3d 843 [2010]).

The court properly exercised its discretion in denying defendant's CPL 210.40 motion to dismiss the indictment in furtherance of justice. There is no "compelling factor" (CPL [*2]210.40 [1]) that would warrant that "extraordinary remedy" (People v Moye, 302 AD2d 610, 611 [2d Dept 2003]). In particular, the offense was serious in that defendant disobeyed a court order designed to protect his wife from harm. Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Clark and Kapnick, JJ.