People v. Wheeler, 67 N.Y.2d 960 (1986)
A crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense.
Summary
The New York Court of Appeals affirmed the lower court’s decision, holding that attempted sexual abuse in the first degree is not a lesser included offense of attempted rape in the first degree. The court reasoned that it is possible to commit attempted rape without necessarily having the specific intent to gratify sexual desire, which is a required element of sexual abuse. Therefore, because it is not impossible to commit the greater offense (attempted rape) without committing the lesser offense (attempted sexual abuse), the defendant’s request for a jury instruction on the lesser charge was properly denied.
Facts
The defendant was indicted for attempted rape in the first degree. At trial, the defendant requested that the court also submit to the jury the charge of attempted sexual abuse in the first degree as a lesser included offense. The trial court denied this request.
Procedural History
The trial court refused the defendant’s request to charge the jury on attempted sexual abuse as a lesser included offense. The Appellate Division affirmed this decision. The case then went to the New York Court of Appeals.
Issue(s)
Whether attempted sexual abuse in the first degree is a lesser included offense of attempted rape in the first degree, such that the trial court was required to instruct the jury on the lesser charge.
Holding
No, because it is not impossible to commit attempted rape in the first degree without also committing attempted sexual abuse in the first degree.
Court’s Reasoning
The Court of Appeals based its decision on the statutory definitions of rape and sexual abuse. Rape in the first degree, under Penal Law § 130.35, requires “sexual intercourse with a female * * * by forcible compulsion.” Sexual intercourse, under Penal Law § 130.00(1), “has its ordinary meaning and occurs upon any penetration, however slight.” Sexual abuse in the first degree, under Penal Law § 130.65(1), requires subjecting “another person to sexual contact * * * by forcible compulsion.” Sexual contact, under Penal Law § 130.00(3), is “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.”
The court emphasized the element of intent: while rape requires only penetration, however slight, sexual abuse requires the specific intent of gratifying sexual desire. The court stated: “Although it would be impossible to commit the crime of rape without ‘touching of the sexual or other intimate parts’ of the victim, it is, of course, possible to commit rape without the actor having as his purpose the gratification of either party’s sexual desire.”
The court further noted that nonsexual motives for rape, such as a desire to humiliate, injure, or dominate the victim, have been recognized. Because the “impossibility” test for a lesser included offense was not met, the trial court properly refused to submit the charge of attempted sexual abuse to the jury.