New York Law Review

Tag: Lesser Included Offense

  • People v. Repanti, 23 N.Y.3d 707 (2014): Harassment as a Lesser Included Offense of Attempted Assault

    23 N.Y.3d 707 (2014)

    Harassment in the second degree is not a lesser included offense of attempted assault in the third degree because the intent elements of the two crimes are distinct and it is theoretically possible to commit attempted assault without also committing harassment.

    Summary

    The New York Court of Appeals held that harassment in the second degree is not a lesser included offense of attempted assault in the third degree. The court clarified that to be considered a lesser included offense, it must be theoretically impossible to commit the greater crime without simultaneously committing the lesser offense. The court found that the intent elements for the two crimes are distinct; attempted assault requires intent to cause physical injury, while harassment requires intent to harass, annoy, or alarm. Therefore, the court affirmed the defendant’s conviction for both attempted assault and harassment, as the latter was not a lesser included offense of the former.

    Facts

    The defendant, Steven Repanti, and the complainant lived in the same senior community. Following an altercation in a staircase, Repanti was charged with attempted assault in the third degree. The prosecution subsequently added a charge of harassment in the second degree before trial. At trial, the complainant testified that Repanti forcefully “banged into” her with his shoulder. Repanti denied any physical contact. The trial court convicted Repanti of both attempted assault and harassment. The Appellate Term affirmed, and the New York Court of Appeals granted leave to appeal.

    Procedural History

    The trial court convicted Repanti of both attempted assault and harassment. The Appellate Term affirmed the convictions. The New York Court of Appeals granted Repanti leave to appeal.

    Issue(s)

    1. Whether harassment in the second degree is a lesser included offense of attempted assault in the third degree.

    Holding

    1. No, because it is not theoretically impossible to commit attempted assault without also committing harassment.

    Court’s Reasoning

    The court relied on New York’s Criminal Procedure Law (CPL) 1.20(37), which defines a lesser included offense. The court stated that to establish a lesser included offense, a defendant must show “that it is theoretically impossible to commit the greater crime without at the same time committing the lesser.” The court emphasized this determination must be based on a comparison of the statutes in the abstract, without reference to the specific facts of the case. The court found that attempted assault requires the intent to cause physical injury, while harassment requires the intent to harass, annoy, or alarm. The court explained, “an additional element or fact must be shown to be present in a case of harassment, requiring proof of an intent to harass, annoy or alarm, which is not a required element of an assault count.”

    The court cited *People v. Moyer*, which held that harassment is not a lesser included offense of assault, because it requires proof of an intent to harass, annoy, or alarm, which is not a required element of assault. The court also rejected Repanti’s argument that the *Stanfield* rule applied because the counts were based on the same conduct. The court clarified that *Stanfield* was limited by *Glover* which stated, “the theoretical impossibility requirement “is mandated by the provisions of CPL 1.20 (subd 37)”. The court affirmed the convictions based on the distinct intent elements of the two crimes.

  • People v. Rivera, 23 N.Y.3d 112 (2014): Jury Instructions on Lesser Included Offenses

    23 N.Y.3d 112 (2014)

    A trial court is not required to submit a charge of reckless manslaughter (second-degree) as a lesser included offense of intentional homicide (e.g., second-degree murder) unless there is a reasonable view of the evidence to support a finding that the defendant acted recklessly, meaning the record doesn’t automatically require a reckless manslaughter charge even if it doesn’t completely exclude the possibility of recklessness.

    Summary

    Enrique Rivera was convicted of first-degree manslaughter for the stabbing death of Edgar Ojeda in a bar. Rivera argued the trial court erred by not submitting second-degree manslaughter (reckless manslaughter) to the jury. The New York Court of Appeals affirmed the conviction, holding that there was no reasonable view of the evidence to support a finding that Rivera acted recklessly. The court emphasized that the nature of the victim’s wounds and the defendant’s own statements indicated an intent to cause serious physical injury, precluding a finding of mere recklessness. The court reiterated that a lesser included offense instruction is only required when there is a rational basis for the jury to reject evidence establishing the greater crime while accepting evidence of the lesser crime.

    Facts

    Rivera and Ojeda were both at a Brooklyn bar. Rivera approached Ojeda, and after a brief verbal exchange, Rivera stabbed Ojeda multiple times. Eyewitnesses saw Rivera strike or push Ojeda in the chest. Ojeda died from a stab wound to the chest that pierced his lung and a rib. Rivera initially told police he swung a knife at the crowd in self-defense but didn’t know if he had hurt anyone. At trial, Rivera testified that he did not bring the knife and did not stab Ojeda.

    Procedural History

    Rivera was charged with second-degree murder and criminal possession of a weapon. At trial, he requested that the court also submit charges of second-degree manslaughter and criminally negligent homicide. The trial court refused to submit second-degree manslaughter to the jury. The jury acquitted Rivera of murder but convicted him of first-degree manslaughter. The Appellate Division affirmed. 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 refusing to submit a charge of second-degree manslaughter to the jury as a lesser included offense of second-degree murder.

    Holding

    No, because there was no reasonable view of the evidence that would support a finding that Rivera acted recklessly rather than intentionally causing serious physical injury, as required for first-degree manslaughter.

    Court’s Reasoning

    The Court of Appeals applied the two-pronged test for determining whether a lesser included offense should be charged: (1) the crime must be a lesser included offense, and (2) there must be a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater. The Court acknowledged that second-degree manslaughter is a lesser included offense of second-degree murder. However, the Court found that Rivera failed to satisfy the second prong because there was no reasonable view of the evidence to suggest recklessness. The court considered the forensic pathologist’s testimony that the wounds were stab wounds, not the result of merely “waving” a knife. Further, the court noted the depth and location of the wounds, which indicated an intent to cause at least serious physical injury. The Court rejected Rivera’s argument that his initial statement suggested recklessness, finding it inconsistent with the nature of the wounds and the circumstances of the stabbing. The Court emphasized that jury instructions should not invite the jury to compromise or return an unwarranted verdict. Quoting People v. Scarborough, 49 NY2d 364, 369-370 (1980), the court stated that “if, on the whole record, there is not some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime, then the lesser included offense may not be submitted”. The court found no such rational basis here.

  • People v. Medina, 13 N.Y.3d 260 (2009): Double Jeopardy and Partial Verdicts on Lesser Included Offenses

    People v. Medina, 13 N.Y.3d 260 (2009)

    When a jury returns a guilty verdict on a lesser-included offense but fails to reach a verdict on the greater offense, a retrial on the greater offense is barred by double jeopardy unless the defendant affirmatively waived double jeopardy protections with specific knowledge of the implications.

    Summary

    Medina was charged with third-degree and seventh-degree criminal possession of a controlled substance. The jury found him guilty on the seventh-degree charge (a lesser-included offense) but could not reach a verdict on the third-degree charge. A mistrial was declared on the unresolved count. Before a second trial, Medina argued double jeopardy barred retrial on the third-degree charge. The Court of Appeals reversed the Appellate Division, holding that because Medina did not explicitly waive his double jeopardy rights with knowledge of the implications of CPL 300.40(3)(b), retrial on the third-degree charge was impermissible.

    Facts

    The defendant, Medina, was indicted on charges of criminal possession of a controlled substance in the third and seventh degrees. During the trial, the jury deliberated and returned a partial verdict, finding Medina guilty of the seventh-degree possession charge, a misdemeanor and a lesser-included offense of the third-degree charge. The jury was unable to reach a verdict on the third-degree felony charge. A mistrial was declared solely as to the third-degree charge, and the jury was discharged.

    Procedural History

    Prior to the commencement of the second trial on the third-degree charge, Medina moved to dismiss the indictment, arguing that retrial was barred by double jeopardy. The trial court denied the motion, and Medina was subsequently convicted of third-degree criminal possession. The Appellate Division affirmed the conviction. The Court of Appeals reversed, holding that retrial on the third-degree charge violated double jeopardy principles.

    Issue(s)

    Whether the defendant’s retrial on the charge of criminal possession of a controlled substance in the third degree was barred by double jeopardy after the jury returned a guilty verdict on the lesser-included offense of criminal possession of a controlled substance in the seventh degree but was unable to reach a verdict on the third-degree charge, and a mistrial was declared on that count.

    Holding

    Yes, because when the jury returned a guilty verdict on the lesser-included offense, it operated as an acquittal on the greater offense by operation of law, and the defendant did not affirmatively waive his double jeopardy protections with sufficient knowledge of the implications before the mistrial was declared.

    Court’s Reasoning

    The Court of Appeals relied heavily on CPL 300.40(3)(b), which states that if a jury renders a partial verdict of guilty on a lesser included offense, but is unable to agree on a verdict on a higher offense, that is deemed an acquittal of the higher offense. The Court distinguished this case from People v. Echevarria, 6 N.Y.3d 89 (2005), where the defendant explicitly disavowed the protection against double jeopardy. Here, the Court noted the absence of any such explicit waiver. The Court emphasized that for a waiver of double jeopardy to be effective, it must be knowing and intelligent. In this case, neither the court nor the parties discussed the double jeopardy implications of taking a partial verdict. Therefore, Medina’s failure to object to the mistrial did not constitute a waiver of his double jeopardy rights. The court cited People v. Fuller, 96 N.Y.2d 881 (2001), reaffirming that once a defendant is acquitted of a greater charge due to a verdict on a lesser-included offense, they cannot waive the protections of double jeopardy. The dissent argued that the case was indistinguishable from Fuller, and that Medina’s actions were based on a misunderstanding of the law, similar to the defendant in Fuller. The dissent argued that, absent an explicit, knowing waiver of double jeopardy rights, the retrial should be barred. The majority rejected the argument that simply requesting a mistrial constitutes a waiver, especially when the defendant is unaware of the double jeopardy implications.

  • People v. Davis, 14 N.Y.3d 20 (2009): When Criminal Possession is Not a Lesser Included Offense of Criminal Sale

    14 N.Y.3d 20 (2009)

    Criminal possession of a controlled substance is not a lesser included offense of criminal sale of a controlled substance under New York law, even when an agency defense is presented, because it is theoretically possible to commit the sale crime without necessarily committing the possession crime.

    Summary

    George Davis was convicted of criminal sale of a controlled substance. At trial, he requested a jury instruction on the agency defense (arguing he acted as the buyer’s agent) and also requested that the court charge criminal possession as a lesser included offense. The trial court granted the agency defense instruction but denied the lesser included offense charge. The New York Court of Appeals affirmed the conviction, holding that criminal possession is not a lesser included offense of criminal sale, even when the agency defense is raised, because the theoretical possibility exists to sell without possessing. This decision emphasizes a strict application of the ‘impossibility’ test for lesser included offenses.

    Facts

    An undercover officer approached Davis outside a building known for drug sales, requesting two bags of crack cocaine and providing $60. Davis entered the building, returned, and handed the officer the drugs. At trial, Davis testified that the officer solicited his help in purchasing crack, promising to “look out for” him. Davis claimed he led the officer to the building, took $40, purchased the crack inside, and gave it to the officer, receiving no payment for his services. He argued he was merely acting as an agent for the buyer.

    Procedural History

    Davis was indicted for criminal sale of a controlled substance in the third degree. At trial, he requested and received an agency defense instruction. He also requested a charge for criminal possession of a controlled substance as a lesser included offense, which was denied. He was convicted. The Appellate Division affirmed. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s ruling.

    Issue(s)

    Whether the trial court erred in refusing to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree, when an agency defense was properly submitted to the jury.

    Holding

    No, because it is theoretically possible to commit the crime of criminal sale of a controlled substance without, by the same conduct, committing the crime of criminal possession of a controlled substance. The agency defense does not alter this analysis.

    Court’s Reasoning

    The Court of Appeals relied on the two-pronged test established in People v. Glover to determine whether a defendant is entitled to a lesser included offense charge. The first prong requires that it be theoretically impossible to commit the greater crime without committing the lesser. The Court emphasized that this determination is made by a “comparative examination of the statutes defining the two crimes, in the abstract” (Glover). Here, the court reasoned that one can “offer or agree to” sell drugs without having physical possession or control over them. The court dismissed the argument that the agency defense changes this analysis. The agency defense is an interpretation of the definition of “sell.” The Court stated, “Although ‘[r]eading the statute literally, any passing of drugs from one person to another would constitute a sale,’ we have held that ‘[o]ne who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics’.” Because the agency defense is still a defense to sale, the Court reasoned that the Glover test remains applicable and an exception to the test is not warranted. As such, the Court affirmed the lower court’s conclusion. The dissenting opinion argued for an exception to the Glover test when the agency defense is invoked. The dissent contended that because a defendant asserting the agency defense essentially admits to possessing the drugs on behalf of the buyer, a charge of simple possession should be included to avoid coercing the jury into either acquitting a defendant who admits to criminal conduct or convicting them of a greater crime.

  • People v. Wallace, 7 N.Y.3d 886 (2006): Jury Instruction on Lesser Included Offense

    7 N.Y.3d 886 (2006)

    A court is not required to submit a charge to the jury on a lesser included offense unless there is a reasonable view of the evidence to support a conviction for the lesser offense but not the greater offense.

    Summary

    Wallace was convicted of robbery in the first and second degrees. He appealed, arguing the trial court erred by not submitting a charge to the jury on the lesser included offense of robbery in the third degree. The New York Court of Appeals affirmed the conviction, holding that there was no reasonable view of the evidence to support a conviction for robbery in the third degree. The victim’s testimony indicated the defendant had a gun, and no other evidence reasonably contradicted this testimony. The court emphasized that even though a witness claimed not to see a gun, he overheard a statement indicating the defendant possessed one. Thus, the court properly declined to charge the jury on the lesser included offense.

    Facts

    The victim was approached by Wallace and three companions as he left school. Two companions acted as lookouts while Wallace and another individual surrounded the victim. Wallace pressed his hip into the victim’s waist, revealing what appeared to be a gun. The victim testified he saw the barrel and handle of a black gun. Wallace and his accomplice then took the victim’s money and iPod.

    Procedural History

    Wallace was tried jointly with his accomplices. He requested the trial court to charge the jury on robbery in the third degree as a lesser included offense of robbery in the first degree. The trial court denied the request. Wallace was convicted of robbery in the first and second degrees. The Appellate Division affirmed the conviction. The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in declining to submit a charge to the jury on the lesser included offense of robbery in the third degree.

    Holding

    No, because there was no reasonable view of the evidence to support a conviction of robbery in the third degree and not robbery in the first degree.

    Court’s Reasoning

    To establish entitlement to a charge on a lesser included offense, a defendant must show that the greater crime cannot be committed without also committing the lesser crime, and that a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but not the greater offense. The court stated, “Although robbery in the third degree is a lesser included crime of robbery in the first degree, here there is no reasonable view of the evidence to support a jury finding that defendant committed robbery in the third degree and not robbery in the first degree.” The victim testified that the defendant had a gun. While a witness claimed not to have seen the gun, he overheard another accomplice tell the victim that the defendant had a gun. The court concluded that based on the evidence presented, no reasonable jury could find the defendant committed robbery in the third degree but not robbery in the first degree, and therefore, the trial court did not err in declining to submit the charge to the jury. The decision emphasizes the importance of the trial court’s assessment of the evidence in determining whether a lesser included offense instruction is warranted.

  • People v. Devonish, 6 N.Y.3d 727 (2005): Entitlement to Lesser Included Offense Instruction

    6 N.Y.3d 727 (2005)

    A defendant is entitled to a jury instruction on a lesser included offense if there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater offense.

    Summary

    James Devonish was convicted of second-degree burglary. At trial, the defense requested a jury instruction on the lesser included offense of second-degree criminal trespass, which the trial court denied. The Court of Appeals reversed, holding that the defendant was entitled to the lesser included offense instruction because a reasonable view of the evidence suggested he may have committed criminal trespass (entering unlawfully) without the intent to commit a crime therein, as required for burglary. The evidence showed he was found in a locked church with tools that might have belonged to someone else who stored them there, thus creating a question as to whether he possessed the tools (and criminal intent) upon entry.

    Facts

    Defendant James Devonish was found inside a locked church building. He had a bag containing tools commonly used by burglars.

    A witness, a general contractor for the church, testified that he stored his tools in the church basement.

    The contractor identified one of the tools found in Devonish’s possession as his “for sure,” and indicated the others might have been his as well.

    Procedural History

    The defendant was convicted of burglary in the second degree in the trial court.

    He appealed, arguing that the trial court erred in refusing to instruct the jury on the lesser included offense of criminal trespass in the second degree.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in refusing the defendant’s request to charge the jury with the lesser included offense of criminal trespass in the second degree.

    Holding

    Yes, because a reasonable view of the evidence would permit the jury to conclude that the defendant committed the lesser offense (criminal trespass) but not the greater offense (burglary).

    Court’s Reasoning

    The Court of Appeals reasoned that, viewing the evidence in the light most favorable to the defendant, the jury could have inferred that the defendant did not bring the tools with him into the church.

    The court noted that the contractor’s testimony indicated the tools could have already been in the church. Thus, the evidence could have failed to establish that the defendant had the requisite criminal intent (to commit a crime inside) at the time of entry, a necessary element of burglary.

    The court cited People v. Scarborough, 49 N.Y.2d 364, 373 (1980), emphasizing that if “some reasonable view of the evidence would support a finding that the defendant committed such lesser offense but did not commit the greater, it is error to refuse to submit such lesser offense.”

    Because the jury could have reasonably concluded that the defendant entered the church unlawfully (trespass) but without the intent to commit a crime therein (burglary), the defendant was entitled to the lesser included offense instruction.

    The Court stated that “the jury was entitled to infer that defendant did not bring the tools with him to the church, and thus that the evidence failed to show that he had criminal intent at the time of entry”.

  • People v. Suarez, 6 N.Y.3d 224 (2005): Double Jeopardy and Dismissal for Insufficient Evidence

    6 N.Y.3d 224 (2005)

    Dismissal of charges due to insufficient evidence is equivalent to an acquittal for double jeopardy purposes, barring subsequent prosecution for the same offense or a lesser included offense.

    Summary

    Suarez was indicted for murder but the trial court withdrew the intentional murder counts due to insufficient evidence, submitting only depraved indifference murder and manslaughter charges. The jury acquitted Suarez of murder but couldn’t reach a verdict on manslaughter. He was then indicted for first-degree manslaughter. The New York Court of Appeals held that withdrawing the intentional murder charges was an acquittal, and since first-degree manslaughter is a lesser included offense of intentional murder, retrying Suarez for manslaughter violated double jeopardy. This case clarifies that a dismissal for insufficient evidence acts as an acquittal.

    Facts

    In February 1999, Suarez fatally shot two individuals. He was indicted on multiple counts, including first-degree murder, second-degree murder (both intentional and depraved indifference), and weapons possession. The trial court repeatedly stated there was insufficient evidence of intentional murder. The court only submitted depraved indifference murder and second-degree manslaughter (as a lesser included offense) to the jury.

    Procedural History

    The jury acquitted Suarez of the murder charges but deadlocked on the manslaughter charges, resulting in a mistrial. Suarez was subsequently indicted for first-degree manslaughter and second-degree manslaughter. The trial court denied Suarez’s motion to dismiss the second indictment, arguing double jeopardy. A second jury convicted Suarez of two counts of first-degree manslaughter. The Appellate Division affirmed. The New York Court of Appeals reversed, holding that the second trial violated double jeopardy principles.

    Issue(s)

    1. Whether the trial court’s withdrawal of the intentional murder counts from the jury’s consideration due to insufficient evidence constituted an acquittal for double jeopardy purposes?
    2. Whether first-degree manslaughter is the same offense as intentional second-degree murder for double jeopardy purposes, such that acquittal of the greater offense precludes subsequent prosecution for the lesser offense?

    Holding

    1. Yes, because the trial court’s decision not to submit the intentional murder counts to the jury, based on a finding of insufficient evidence, amounted to a dismissal of those charges and thus the equivalent of an acquittal for double jeopardy purposes.
    2. Yes, because first-degree manslaughter is a lesser included offense of second-degree intentional murder, requiring no proof beyond that which is required for conviction of the greater offense.

    Court’s Reasoning

    The Court of Appeals relied on established double jeopardy principles, stating that double jeopardy protects against a second prosecution for the same offense after an acquittal. Citing United States v. Martin Linen Supply Co., the court emphasized that the label given to a judge’s action is not controlling; rather, the key is whether the ruling represents a resolution of some or all of the factual elements of the offense charged. Here, the trial judge’s repeated statements regarding the insufficiency of evidence for intentional murder, coupled with the decision to withhold those charges from the jury, constituted a dismissal amounting to an acquittal.

    The court then applied the Blockburger v. United States test to determine whether first-degree manslaughter and second-degree murder are the “same” offense for double jeopardy purposes. The Blockburger test asks whether each provision requires proof of an additional fact that the other does not. Second-degree murder requires intent to cause death, while first-degree manslaughter requires intent to cause serious physical injury. The court reasoned that it is impossible to intend to kill someone without simultaneously intending to cause serious physical injury. Therefore, first-degree manslaughter is a lesser included offense of second-degree murder. As stated in Brown v. Ohio, “the lesser offense…requires no proof beyond that which is required for conviction of the greater.”

    Because Suarez was acquitted of intentional murder, and first-degree manslaughter is the same offense as second-degree murder under Blockburger, the Double Jeopardy Clauses of both the Federal and State Constitutions barred his subsequent indictment and prosecution for first-degree manslaughter. The court clarified that unpreserved statutory double jeopardy claims are not reviewable.

  • People v. Mills, 1 N.Y.3d 269 (2003): Waiver of Statute of Limitations by Requesting Lesser Included Offense

    1 N.Y.3d 269 (2003)

    A defendant forfeits or waives a statute of limitations defense for a lesser included offense when the indictment is based on legally sufficient evidence and the defendant requests that the jury be charged on the lesser included offense.

    Summary

    Arthur Mills was indicted for second-degree murder in the 1978 drowning death of a 12-year-old. Mills requested the jury be instructed on the lesser included offense of criminally negligent homicide, which had a five-year statute of limitations that had long expired. The trial court agreed, conditioning the charge on Mills waiving any statute of limitations defense. Mills maintained his right to appeal on statute of limitations grounds, but the court charged the jury with the lesser offense. Mills was convicted of criminally negligent homicide. The Court of Appeals held that by requesting the charge, Mills waived his statute of limitations defense, provided the original indictment for second-degree murder was based on legally sufficient evidence.

    Facts

    In 1978, Arthur Mills (age 17) pushed 12-year-old Raymond Umber off a pier into Oneida Lake. Umber hit his head and drowned. Mills told his companions to keep quiet, threatening them with jail if they revealed the incident. The death was initially ruled accidental. Twenty years later, Mills’s brother, motivated by anger over an affair, reported the incident to the police. Mills’s wife also provided incriminating statements.

    Procedural History

    Mills was indicted for second-degree murder. He requested that lesser included offenses be submitted to the jury. The trial court granted this request, conditioning it on a waiver of any statute of limitations defense for the lesser charges. At the charge conference, Mills requested criminally negligent homicide be submitted, but maintained he reserved the right to appeal on statute of limitations grounds. The jury acquitted Mills of second-degree murder but convicted him of criminally negligent homicide. Mills’s motion to set aside the verdict was denied. The Appellate Division affirmed. Leave to appeal was granted, and the Court of Appeals affirmed.

    Issue(s)

    Whether a defendant, by requesting that the jury be charged on a lesser included offense that is normally time-barred, forfeits or waives the statute of limitations defense to that lesser included offense, when the indictment is based on legally sufficient evidence.

    Holding

    Yes, because where an indictment is based on legally sufficient evidence, a defendant’s statute of limitations defense is forfeited or waived by his request to charge the lesser included offense.

    Court’s Reasoning

    The Court of Appeals reasoned that the statute of limitations is an affirmative defense that can be waived. CPL 300.50(1) allows for lesser included offenses to be submitted if there’s a reasonable view of the evidence supporting the lesser offense but not the greater. CPL 300.50(2) requires the court to submit a lesser included offense when requested by either party if authorized by CPL 300.50(1). By requesting the charge, Mills waived his right to challenge the submission of the lesser charge on appeal. The court emphasized that its holding eliminates the danger of prosecutorial overcharging to circumvent the statute of limitations, because the court would still have to decide if the evidence before the grand jury was legally sufficient to support the depraved indifference charge.

    The Court found the evidence presented to the grand jury was legally sufficient to establish a prima facie case of depraved indifference murder. The Court stated, “Legally sufficient evidence is defined as ‘competent evidence which, if accepted as true, would establish every element of an offense charged’ (CPL 70.10 [1]). In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt’ (People v Bello, 92 NY2d 523, 526 [1998]; see People v Mayo, 36 NY2d 1002, 1004 [1975]).” The actions of pushing Umber, and then misleading Mills’ friends to discourage them from helping established a prima facie case.

    Regarding the marital privilege, the Court found statements made during the course of physical abuse are not considered confidential because the speaker isn’t relying on the marital relationship to keep the statements secret. Because Mills was choking and threatening his wife when he made the incriminating statements, the privilege did not apply.

  • People v. Barney, 99 N.Y.2d 369 (2003): Defining ‘Dwelling’ for Burglary After Occupant’s Death

    People v. Barney, 99 N.Y.2d 369 (2003)

    A building retains its character as a ‘dwelling’ for purposes of burglary statutes even shortly after the death of its sole occupant, provided it was usually occupied for lodging, is furnished, and retains the indicia of a residence.

    Summary

    Barney was convicted of second-degree burglary for entering the home of a man who had died three days prior, intending to steal marijuana. The central issue was whether the house still qualified as a ‘dwelling’ under New York Penal Law. The Court of Appeals affirmed the conviction, holding that the house, which was furnished, had utilities connected, and was recently occupied, retained its character as a dwelling. The Court reasoned that a short period after the occupant’s death doesn’t automatically strip the house of its dwelling status, especially considering the potential harm to grieving relatives and friends.

    Facts

    The sole occupant of a house died on August 21, 1999. Defendant Barney, aware of the death and that the decedent kept marijuana in the house, entered the unlocked house to search for drugs. Unable to find the drugs, Barney began collecting other items from the house. Police arrived, summoned by a neighbor, and arrested Barney. The utilities were still connected, and the house was furnished. The decedent’s mother owned the house but lived elsewhere and had given a friend of her son a key to care for the property after his death.

    Procedural History

    Barney was indicted for second-degree burglary and attempted petit larceny. The trial court denied Barney’s request to submit lesser included offenses (third-degree burglary, criminal trespass) to the jury and denied his motion to dismiss the second-degree burglary charge. Barney was convicted of both charges. The Appellate Division affirmed. One of the dissenting Justices at the Appellate Division granted leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether there was legally sufficient evidence to prove that the house Barney entered was a ‘dwelling’ within the meaning of Penal Law § 140.25 (2) when its sole occupant had died three days prior to the entry?

    2. Whether Barney was entitled to a jury instruction on the lesser included offense of third-degree burglary?

    Holding

    1. Yes, because viewing the evidence in the light most favorable to the People, a jury could reasonably conclude that the house was ‘usually occupied by a person lodging therein at night’ as required by the statute.

    2. No, because there was no reasonable view of the evidence that would support a finding of burglary in the third degree without also finding second-degree burglary; the house was, in fact, a dwelling.

    Court’s Reasoning

    The Court focused on the statutory definition of ‘dwelling’ as a building ‘usually occupied by a person lodging therein at night’ (Penal Law § 140.00 [3]). The Court emphasized the Legislature’s intent to enact a flexible standard. Considering the surrounding facts and circumstances, the Court noted the house was a furnished residence suitable for habitation and had been occupied until three days before the burglary. Quoting People v. Quattlebaum, 91 N.Y.2d 744 (1998), the court noted the importance of looking to the ‘nature of the structure’ to determine if it was normal and ordinary that it was ‘used as a place for overnight lodging’ and had ‘the customary indicia of a residence and its character or attributes’. The Court distinguished this case from situations involving prolonged absence or abandonment, emphasizing that immediate past use is a relevant factor. The Court rejected a rule that a house automatically loses its dwelling character upon the occupant’s death. The Court stated: ‘The death of its sole occupant three days earlier did not, on its own, transform decedent’s house from a dwelling into a building for the purposes of the burglary statute.’

  • People v. Fuller, 96 N.Y.2d 881 (2001): Double Jeopardy and Lesser Included Offenses

    People v. Fuller, 96 N.Y.2d 881 (2001)

    A guilty verdict on a lesser included offense operates as an acquittal on a greater offense for double jeopardy purposes, even if the jury deadlocked on the greater offense, barring retrial on the greater offense.

    Summary

    Defendant was charged with robbery and assault. The jury acquitted him on the robbery charges, convicted him of third-degree assault as a lesser included offense, but deadlocked on second-degree assault. He was then retried and convicted of second-degree assault. The New York Court of Appeals reversed the second-degree assault conviction, holding that the initial guilty verdict on the lesser included offense of third-degree assault acted as an acquittal on the greater offense of second-degree assault, thus barring retrial under double jeopardy principles, notwithstanding the jury’s initial inability to reach a verdict on the greater charge.

    Facts

    The defendant was charged with attacking his girlfriend and indicted on charges including first-degree robbery, second-degree robbery, second-degree assault with a dangerous instrument, and second-degree assault with intent to cause serious physical injury.

    Procedural History

    At trial, the judge found insufficient evidence of serious physical injury for the second-degree assault charge (intent to cause serious physical injury) and submitted a lesser included charge of third-degree assault. The jury acquitted on both robbery counts, found the defendant guilty of third-degree assault, and deadlocked on second-degree assault (assault with a dangerous instrument). The defendant was then retried and convicted of second-degree assault, which the Appellate Division affirmed. The Court of Appeals reversed.

    Issue(s)

    1. Whether a guilty verdict on a lesser included offense operates as an acquittal on a greater offense when the jury deadlocks on the greater offense, thereby precluding retrial on the greater offense under double jeopardy principles.

    Holding

    1. Yes, because under CPL 300.40(3)(b) and 300.50(4), a guilty verdict on a lesser included offense is deemed an acquittal on every greater count submitted. Once acquitted, the defendant cannot “waive” double jeopardy protections.

    Court’s Reasoning

    The Court of Appeals relied on CPL 300.40 (3)(b), which states that regarding inclusory concurrent counts, a guilty verdict on a lesser count is deemed an acquittal on every greater count submitted. The court emphasized that the trial court instructed the jury that count four (submitted as third degree assault) was a lesser included offense of count three (second degree assault). The court stated, “By operation of law, defendant was deemed acquitted of second degree assault when the jury failed to reach a verdict as to that count, but found him guilty of the lesser included offense of third degree assault.” The Court further reasoned that once acquitted, the defendant could not waive the protections against multiple prosecutions. The court cited People v. Boettcher, referencing Green v. United States, stating settled principles of double jeopardy prohibit retrial after an acquittal. The Court explicitly disapproved of Matter of Morgenthau v Beal, which held otherwise.