People v. Garwell, 68 N.Y.2d 674 (1986)
A defendant is entitled to a jury charge on a lesser included offense only if it is theoretically impossible to commit the greater offense without also committing the lesser offense.
Summary
The New York Court of Appeals affirmed the defendant’s conviction for robbery, holding that the trial court properly denied the defendant’s request for a jury charge on criminal possession of stolen property as a lesser included offense. The Court reasoned that the definition of robbery, which includes the use of force, does not require the element of possession inherent in criminal possession of stolen property. Thus, it is theoretically possible to commit robbery without also committing criminal possession of stolen property, failing the “theoretical impossibility” test established in People v. Glover. Therefore, the defendant was not entitled to the requested charge.
Facts
The defendant was convicted of two counts of first-degree robbery and one count of second-degree robbery after a jury trial. At trial, the defendant requested that the judge instruct the jury on criminal possession of stolen property in the third degree as a lesser included offense of robbery. The trial court denied this request.
Procedural History
The defendant was convicted in the trial court. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.
Issue(s)
Whether the trial court erred in denying the defendant’s request for a jury charge of criminal possession of stolen property in the third degree as a lesser included offense of robbery.
Holding
No, because criminal possession of stolen property in the third degree is not a lesser included offense of robbery, as it is theoretically possible to commit robbery without also committing criminal possession of stolen property.
Court’s Reasoning
The Court of Appeals applied the “theoretical impossibility” test derived from People v. Glover to determine whether criminal possession of stolen property is a lesser included offense of robbery. The Court emphasized that criminal possession of stolen property requires possession or control over tangible property, as defined in Penal Law § 10.00 (8). Conversely, robbery, as defined in Penal Law §§ 160.15 and 160.10, does not require proof of possession. The court stated that because the statutory definitions of the robbery crimes do not include possession as a necessary element, “the ‘theoretical impossibility’ test in the definition of a lesser included offense cannot be met.” The Court concluded that since it is theoretically possible to commit robbery without possessing the stolen property, the trial court correctly denied the defendant’s request for a jury charge on the lesser included offense. The court reasoned that the inquiry ends once it is determined that the theoretical impossibility test is not met; there is no need to consider whether a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but not the greater offense.