People v. Henderson, 41 A.D.2d 44 (1973)

A trial court is not required to instruct the jury on the crime of attempt when the evidence presented demonstrates only the consummated crime and provides no reasonable basis for finding the defendant guilty of attempt but not of the completed offense.

Summary

Henderson was convicted of second-degree grand larceny for his role in a wig theft. The prosecution’s evidence indicated that Henderson was caught loading stolen wigs into a truck. Henderson requested the trial judge instruct the jury on attempted larceny, arguing that under the new Penal Law, a charge on attempt must be given in every case. The trial court denied this request. The appellate court affirmed, holding that a charge on attempt is not required when the evidence shows only a completed crime. The court clarified that while the new penal law broadens the discretion to give an attempt charge, it doesn’t mandate it where the evidence only supports a completed crime.

Facts

Two armed men robbed Posner Laboratories, tying up employees. One robber loaded wigs into a panel truck while the other guarded the employees.

Responding to an alert, Officer Guerrier found Henderson loading cartons into the truck at the warehouse.

Henderson stated he was hired to drive the truck and knew a man named Mike.

The wigs in the truck were valued between $6,000 and $8,000.

Procedural History

Henderson was indicted and convicted of second-degree grand larceny.

He unsuccessfully sought dismissal of the indictment based on insufficient evidence.

The trial court denied Henderson’s request for instructions on petit larceny and attempted larceny.

The Appellate Division affirmed the conviction.

The appeal reached the Court of Appeals by permission.

Issue(s)

Whether the trial court erred in refusing the defendant’s request to instruct the jurors that they might find him guilty of the crime of attempted larceny, where the evidence presented indicated a completed larceny.

Holding

No, because a trial judge is not required to instruct the jury with respect to a crime of attempt for which there is no basis in the evidence, especially when the evidence demonstrates only a consummated crime.

Court’s Reasoning

The Court of Appeals addressed Henderson’s argument that a change in the Penal Law required a charge on attempt in every case, regardless of the evidence. The court rejected this argument, stating that the new law (Penal Law § 110.00) simply gives the judge more discretion in granting or refusing a charge on attempt, and the jury a little more leeway in deciding the issue of an attempt or consummation in a close case.

The court emphasized that a jury’s power to convict of an attempt exists