People v. Gallagher, 69 N.Y.2d 763 (1987)
A conviction for a crime that does not exist in the penal law is a fundamental error that cannot be waived, even if the defendant fails to object to the jury charge.
Summary
Defendant was indicted for attempted murder and criminal possession of a weapon. The trial court, without objection from either party, instructed the jury on attempted manslaughter as a lesser included offense. The defendant was acquitted of attempted murder but convicted of attempted manslaughter and weapon possession. The New York Court of Appeals modified the appellate division’s order, vacating the attempted manslaughter conviction. The court held that a conviction for a nonexistent crime, like attempted manslaughter in the first degree (as charged), is a fundamental error that cannot be waived, even if the defendant does not object to the jury charge. The case was remitted for resentencing on the weapon possession charge.
Facts
The defendant was indicted on charges of attempted murder in the second degree and criminal possession of a weapon in the third degree.
At the close of evidence, the trial court informed both the prosecution and the defense that it would instruct the jury on attempted manslaughter in the first degree, considering it a lesser included offense of the attempted murder charge.
Neither the prosecution nor the defense objected to the inclusion of the attempted manslaughter charge.
The jury acquitted the defendant of attempted murder but convicted him of attempted manslaughter in the first degree and criminal possession of a weapon in the third degree.
Procedural History
The County Court convicted the defendant of attempted manslaughter in the first degree and criminal possession of a weapon in the third degree.
The Appellate Division affirmed the County Court’s conviction.
The New York Court of Appeals reviewed the Appellate Division’s order.
Issue(s)
Whether a conviction for attempted manslaughter in the first degree, a nonexistent crime under New York law, is a fundamental error that can be waived by the defendant’s failure to object to the jury charge.
Holding
No, because a conviction for a nonexistent crime presents error fundamental to the organization of the court or the mode of proceedings proscribed by law that cannot be waived.
Court’s Reasoning
The Court of Appeals reasoned that attempted manslaughter in the first degree, as charged in this case, is a legal impossibility, as it involves an attempt to commit an unintentional act. Citing People v. Campbell, 72 N.Y.2d 602 (1988), and People v. Foster, 19 N.Y.2d 150 (1967), the court emphasized the established principle that attempted manslaughter in the first degree is not a recognized crime in New York. Because the crime itself does not exist in the Penal Law, there could not be sufficient evidence to support a conviction beyond a reasonable doubt.
The court distinguished the situation from cases where a defendant pleads guilty to a nonexistent crime in satisfaction of a more serious charge (allowed under People v. Foster) or is convicted of a lesser crime that is not a lesser-included offense but is nevertheless a valid crime (allowed under People v. Ford, 62 N.Y.2d 275 (1984)). In those scenarios, the defendant makes a calculated choice. Here, the jury found the defendant guilty of each element of the crime beyond a reasonable doubt, which is not possible when a required element of the crime, such as intending to cause an unintended result, is a legal impossibility.
The court emphasized that this type of error affects the fundamental fairness and legality of the proceedings and cannot be waived by a defendant’s failure to object. As the court stated, such a conviction “presents error fundamental to ‘the organization of the court or the mode of proceedings proscribed by law’ that cannot be waived.” (citing People v. Patterson, 39 N.Y.2d 288, 295 (1976), affd, 432 U.S. 197 (1977)).