People v. Malave, 21 N.Y.2d 26 (1967)

When a defendant is charged with a crime, and there is a reasonable view of the evidence that would support a finding that the defendant committed a lesser included offense, the trial court must instruct the jury on that lesser included offense.

Summary

The defendant was charged with multiple counts of selling narcotics and possession of narcotics with intent to sell. At trial, the judge only submitted the charges for sale to the jury, reasoning that the testimony presented only supported a conviction for sale or no crime at all. The New York Court of Appeals reversed the conviction, holding that the trial court erred by not submitting the lesser included offenses of possession with intent to sell and unlawful possession to the jury. The court reasoned that a jury could have reasonably concluded that the defendant possessed the drugs but that the prosecution failed to prove beyond a reasonable doubt that he actually sold them. This case reinforces the principle that juries should be allowed latitude, and lesser included offenses must be submitted if any view of the evidence supports it.

Facts

Defendant was indicted on nine counts related to narcotics offenses:

• Sale of narcotics (felony).
• Possession of narcotics with intent to sell (felony).
• Unlawful possession of narcotics (misdemeanor).

These charges stemmed from three separate incidents in 1964. The primary witness was Officer Wilson, who testified he purchased narcotics from the defendant on three occasions.

Procedural History

The trial court only submitted the sale charges to the jury, removing the charges of possession with intent to sell and unlawful possession. The trial court reasoned that the case presented a binary choice: either the defendant sold the narcotics, or he did not. The jury convicted the defendant on the sale charges. The defendant appealed arguing the trial court erred in not submitting the lesser included offenses to the jury. The New York Court of Appeals reversed the judgment and ordered a new trial.

Issue(s)

Whether the trial court erred by failing to instruct the jury on lesser included offenses (possession with intent to sell and unlawful possession) when the defendant was charged with sale of narcotics, and there was a reasonable view of the evidence to support a conviction on the lesser charges.

Holding

Yes, because a jury could have reasonably believed that the defendant possessed the narcotics but that the prosecution failed to prove beyond a reasonable doubt that he sold them.

Court’s Reasoning

The Court of Appeals relied on Section 445 of the Code of Criminal Procedure, which states a defendant “may be found guilty of any crime, the commission of which is necessarily included” in the crime charged. The court emphasized that when a defendant is charged with sale of contraband, the normal procedure is to submit charges for possession, possession with intent to sell, and sale to the jury, especially when the Grand Jury has made separate charges based on possession.

The court cited People v. Bodie, which held that a jury could find a defendant not guilty of selling narcotics but guilty of possession, even if possession was not separately charged in the indictment. The court also cited People v. Schleiman, noting the general rule that refusal to instruct the jury as to their power to convict of a lower degree is warranted only in “exceptional” conditions, where there is “no possible view of the facts” by which the jury could find the lesser degree.

Quoting Judge Fuld in People v. Mussenden, the court stated, “It has been repeatedly written that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense.” The court emphasized the jury’s latitude, quoting People v. Clemente that juries “may, on almost any excuse, convict of a lower degree of crime although conviction of a higher degree is clearly warranted.”

The court noted weaknesses in the prosecution’s case: a significant time lapse between the purported sales and the defendant’s arrest, and the officer’s reliance on notes when testifying. The court also noted the defendant’s testimony, where he denied selling narcotics but admitted to being a user. The court reasoned the jury could have interpreted this as a denial of sale but an implicit admission of possession. The classic test to warrant a refusal to submit lower degrees or included crimes is that “every possible hypothesis” but the higher crime be excluded (citing People v. Moran). Because a jury could have reasonably concluded that the defendant possessed the drugs but was not proven to have sold them, the trial court erred in not submitting the lesser included offenses.