People v. Green, 56 N.Y.2d 427 (1982)
A crime is only a lesser included offense of another if it is impossible to commit the greater crime without also committing the lesser offense.
Summary
The New York Court of Appeals reversed the Appellate Division’s order and dismissed the indictment against the defendant, who was convicted of reckless endangerment in the first degree after the trial court reduced an attempted murder charge. The Court of Appeals held that reckless endangerment is not a lesser included offense of attempted murder. The court reasoned that it is theoretically possible to attempt murder without creating a grave risk of death, a necessary element of reckless endangerment. This decision reinforces a strict interpretation of the “lesser included offense” definition in New York criminal law, requiring impossibility of committing the greater crime without also committing the lesser.
Facts
The defendant was charged with multiple offenses, including two counts of attempted murder in the second degree, one count of assault in the first degree, and three counts of criminal possession of a weapon.
At the close of the prosecution’s case, the trial judge found insufficient evidence to prove intent to kill for one of the attempted murder charges.
The judge reduced this charge to reckless endangerment in the first degree and dismissed the remaining counts of the indictment.
Procedural History
The defendant was convicted of reckless endangerment in the first degree.
The Appellate Division affirmed the conviction.
The New York Court of Appeals granted review.
Issue(s)
Whether reckless endangerment in the first degree is a lesser included offense of attempted murder in the second degree under New York Criminal Procedure Law (CPL 1.20, subd. 37).
Holding
No, because it is theoretically possible to commit attempted murder in the second degree without also committing reckless endangerment in the first degree.
Court’s Reasoning
The Court of Appeals focused on the statutory definition of “lesser included offense” as defined in CPL 1.20 (subd 37): “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.”
The Court emphasized a strict interpretation of this definition, stating, “one crime cannot be a lesser included offense of another if it is theoretically possible to commit the greater crime without concomitantly committing the lesser.”
The Court applied this interpretation to the case, noting that attempted murder requires intent to kill, while reckless endangerment requires creating a grave risk of death. The court reasoned that an attempted murder could be rendered “innocuous by some circumstance of factual impossibility,” meaning that no grave risk of death would be created. Therefore, a person could commit attempted murder without committing reckless endangerment.
The court cited People v. Miguel, 53 N.Y.2d 920, to further support its holding, reinforcing the principle that the theoretical possibility of committing the greater crime without the lesser precludes the lesser crime from being a lesser included offense.
The Court concluded that since reckless endangerment in the first degree (Penal Law, § 120.25) is not a lesser included offense of attempted murder in the second degree (Penal Law, §§ 110.00, 125.25, subd 1), the defendant’s conviction for the former could not stand after the attempted murder charge was reduced.