New York Law Review

Tag: Inclusory Concurrent Counts

  • People v. Tucker, 55 N.Y.2d 1 (1981): Resubmission of Verdicts for Jury Reconsideration

    People v. Tucker, 55 N.Y.2d 1 (1981)

    When a jury returns a verdict that fails to comply with the court’s instructions regarding inclusory concurrent counts, resubmission to the jury is required only if the verdict demonstrates confusion about the jury’s intent.

    Summary

    Tucker was convicted of both criminal possession of a controlled substance with intent to sell and simple possession, despite the trial court’s instruction to consider these counts in the alternative. The trial court dismissed the simple possession counts after the verdict. The New York Court of Appeals held that resubmission to the jury is only required if the verdict showed confusion about the jury’s intent. Because the jury’s intent to convict on possession with intent to sell was clear, the additional finding of simple possession was considered surplusage, and the trial court’s dismissal of the lesser counts was affirmed.

    Facts

    Tucker was arrested and indicted on six counts related to two separate drug transactions, including criminal sale, criminal possession with intent to sell, and simple possession of a controlled substance. The indictment charged the defendant duplicatively with respect to each drug transaction.

    Procedural History

    The trial court instructed the jury to consider inclusory concurrent counts in the alternative. The jury convicted Tucker of both possession with intent to sell and simple possession for each transaction, acquitting him of the sale counts. The trial court dismissed the simple possession counts sua sponte. The Appellate Division affirmed. The New York Court of Appeals affirmed.

    Issue(s)

    Whether the jury’s failure to comply with the trial court’s instructions to consider inclusory concurrent counts in the alternative requires, per se, resubmission of the case to the jury for reconsideration of its verdict under CPL 310.50(2)?

    Holding

    No, because absent a verdict indicating confusion about the jury’s intention, the jury’s failure to comply with the court’s instructions does not automatically require resubmission.

    Court’s Reasoning

    The Court of Appeals interpreted CPL 310.50(2), stating it does not create a strict rule requiring resubmission whenever a jury fails to follow instructions. Resubmission is necessary only when the verdict reveals confusion about the jury’s intent regarding specific counts. In this case, the jury’s intent to convict Tucker of criminal possession with intent to sell was clear. The conviction for simple possession was deemed surplusage and did not indicate inconsistency or confusion. The court distinguished this case from People v. Salemmo, where the jury’s verdict was inherently inconsistent, demonstrating confusion. The court stated that “resubmission is required only where the verdict returned by the jury exhibits a confusion on the part of the jury such that its intention with respect to individual counts of the indictment is uncertain.” The court found that the trial court acted properly in dismissing the lesser inclusory concurrent counts, as appellate courts often do when a defendant could not have committed the greater offense without also committing the lesser offense. The court reasoned, “absent an indication of confusion clouding the jury’s intent in returning a verdict, we see no reason why the trial court cannot dismiss, as appellate courts have, lesser inclusory concurrent counts of an indictment upon the return of a verdict finding the defendant guilty of a greater count.”

  • People v. Santiago, 41 N.Y.2d 381 (1976): Informant Disclosure and Inclusory Concurrent Counts

    41 N.Y.2d 381 (1976)

    When a defendant is convicted of both a greater offense and a lesser included offense arising from the same conduct, the conviction for the lesser offense must be dismissed.

    Summary

    Santiago was convicted of selling and possessing a dangerous drug. He argued that the informant’s identity should have been disclosed and that the possession conviction was an inclusory concurrent count of the sale conviction. The New York Court of Appeals held that the trial court properly denied disclosure of the informant’s identity after an in camera hearing. However, the Court agreed that the possession charge was a lesser included offense of the sale charge and therefore, the conviction for criminal possession must be dismissed because a defendant cannot be convicted of both selling and possessing the same drugs.

    Facts

    An undercover officer was introduced to Santiago by a confidential informant. Santiago sold the officer heroin. The officer saw Santiago twice more in the following months and later arrested him. Prior to trial, Santiago moved for the disclosure of the informant’s identity.

    Procedural History

    Santiago was convicted of third-degree criminal sale of a dangerous drug and sixth-degree criminal possession of a dangerous drug. The Appellate Division affirmed the convictions without opinion. Santiago appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred in denying the defendant’s motion to disclose the identity of the confidential informant.
    2. Whether the defendant’s conviction for criminal possession of a dangerous drug should be dismissed as an inclusory concurrent count of the criminal sale conviction.

    Holding

    1. No, because the informant’s testimony was not relevant to the defendant’s guilt or innocence.
    2. Yes, because the defendant could not have committed the criminal sale without also possessing the drug, making the possession conviction a lesser included offense.

    Court’s Reasoning

    Regarding the informant’s identity, the Court of Appeals relied on its prior holding in People v. Goggins, stating that "the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innocence of the accused." The court found that the trial court had properly determined, after an in camera examination of the informant, that the informant’s testimony would not have been relevant to Santiago’s defense. The court noted the general rule that defense counsel should have access to the record the judge bases his decision on, but upheld the conviction on the sale charge.

    Regarding the inclusory concurrent count, the Court found the District Attorney conceded that under the facts of the case, Santiago could not have sold the drugs without also possessing them. The Court applied CPL 300.30 (subd 4), defining "inclusory concurrent counts," and CPL 300.40 (subd 3, par [b]), mandating dismissal of the lesser count upon conviction of the greater. The court stated that "[a]s these counts were ‘inclusory concurrent counts’…a verdict of guilty upon the greater is deemed a dismissal of every lesser." Therefore, the conviction for criminal possession was dismissed.

  • People v. Milburn, 40 N.Y.2d 848 (1976): Admissibility of Hearsay and Concurrent Inclusory Counts

    People v. Milburn, 40 N.Y.2d 848 (1976)

    A conviction on the greatest count of inclusory concurrent counts is deemed a dismissal of every lesser count.

    Summary

    Milburn was convicted of robbery and grand larceny. The Court of Appeals addressed two issues: the admissibility of hearsay statements for identification and whether the conviction for both robbery and grand larceny could stand, given that the latter was an inclusory concurrent count of the former. While the court found any error in admitting the hearsay evidence harmless due to strong eyewitness testimony, it agreed that the grand larceny conviction could not stand because the defendant could not have committed the robbery without also committing the grand larceny. The court modified the Appellate Division’s order by dismissing the grand larceny conviction and affirming the rest.

    Facts

    Two eyewitnesses positively identified the defendant, Milburn, as the perpetrator of a robbery. One witness recognized Milburn from the neighborhood, having seen him on several prior occasions. She also observed him during and after the crime. The second witness saw Milburn robbing and beating the victim and later notified the police of his whereabouts.

    Procedural History

    The defendant was convicted of both robbery and grand larceny. The Appellate Division affirmed the conviction. The Court of Appeals then reviewed the case, considering the admissibility of hearsay evidence and the validity of convictions for both robbery and grand larceny.

    Issue(s)

    1. Whether the admission of hearsay statements for identification constituted reversible error.
    2. Whether the defendant’s conviction for both robbery and grand larceny was proper where the grand larceny charge was an inclusory concurrent count of the robbery charge.

    Holding

    1. No, because any error in admitting hearsay evidence was harmless in light of the positive and unwavering identification testimony of the eyewitnesses.
    2. No, because a defendant cannot be convicted of both a greater offense and a lesser included offense arising from the same conduct; conviction on the greatest count is deemed a dismissal of every lesser count.

    Court’s Reasoning

    Regarding the hearsay statements, the Court of Appeals acknowledged that their admission might have been erroneous under People v. Trowbridge. However, citing People v. Milburn, the court concluded that the error was harmless. The court emphasized the “positive and unwavering identification testimony of both eyewitnesses.” One eyewitness had seen the defendant multiple times before and observed him during and after the crime. The other witness observed the defendant robbing the victim and later alerted the police.

    Regarding the robbery and grand larceny convictions, the court agreed with the District Attorney’s concession that the verdict could not stand. The court reasoned that, on the facts of this case, the defendant could not have committed the robbery without also committing the grand larceny. This made the counts inclusory and concurrent, citing CPL 300.30, subd. 4 and People v. Hayes. The court cited CPL 300.40, subd. 3, par. (b): “Where the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count”.