New York Law Review

Tag: Lesser Included Offense

  • People v. Gonzalez, 96 N.Y.2d 195 (2001): Retrial on Lesser Included Offense After Mistrial

    People v. Gonzalez, 96 N.Y.2d 195 (2001)

    When a jury acquits a defendant of a greater offense but fails to reach a verdict on a lesser-included offense, the defendant can be retried on the lesser-included offense using the original accusatory instrument, provided the retrial is limited to the lesser charge and the jury (if any) is not informed of the original, greater charge.

    Summary

    Gonzalez was charged with driving while intoxicated (DWI). At trial, the jury acquitted him of DWI but couldn’t agree on the lesser charge of driving while impaired (DWAI), resulting in a mistrial on that charge. The prosecution sought to retry him for DWAI using the original accusatory instrument. Gonzalez argued double jeopardy and that the original instrument was invalid. The court rejected these arguments, convicted him of DWAI, and the Appellate Term reversed. The New York Court of Appeals reversed the Appellate Term, holding that retrial on the original accusatory instrument was permissible because the Vehicle and Traffic Law and Criminal Procedure Law authorized it, and there was no double jeopardy concern since the retrial was limited to the DWAI charge.

    Facts

    Gonzalez was arrested and charged with DWI. At his first trial, the jury was also charged on the lesser-included offense of DWAI. The jury acquitted Gonzalez of DWI but could not reach a verdict on the DWAI charge, leading to a mistrial on that count.

    Procedural History

    The People sought to retry Gonzalez on the DWAI charge using the original information. The trial court denied Gonzalez’s double jeopardy claim and ruled the retrial would proceed on the original accusatory instrument. After a bench trial on the DWAI charge only, Gonzalez was convicted. The Appellate Term reversed, holding that a new accusatory instrument was required. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a new accusatory instrument is necessary to commence a retrial on a lesser-included charge (DWAI) after the jury in the first trial acquitted the defendant of the greater offense (DWI) but failed to reach a verdict on the lesser-included offense.

    Holding

    No, because both the Vehicle and Traffic Law and the Criminal Procedure Law provide statutory authority for the retrial on the original accusatory instrument, and there was no double jeopardy concern since the retrial was limited to the DWAI charge.

    Court’s Reasoning

    The Court reasoned that Vehicle and Traffic Law § 1192(9) permits a conviction for DWAI even if the accusatory instrument charges only DWI. Also, Criminal Procedure Law § 310.70(2) authorizes a retrial on any count submitted to the jury at the first trial for which the jury failed to reach a verdict. The Court distinguished this case from People v. Mayo, 48 N.Y.2d 245, where the defendant was retried on the original indictment that included the greater offense of which he was effectively acquitted. In this case, Gonzalez was only retried on the lesser charge. The court emphasized that “the People here did not seek to retry defendant on the count (driving while intoxicated) of which he was acquitted at the first trial. Rather, the only count at issue in the retrial was the lesser driving while impaired charge for which the jury had failed to reach a verdict. At no point during the retrial was defendant in jeopardy of conviction of the greater offense.” The court also noted the distinction between felony and misdemeanor charges, highlighting that felony charges require a Grand Jury indictment, a concern not present in misdemeanor cases. Finally, the court cautioned that in retrials on lesser-included offenses using the original instrument, the jury should not be informed of the original, greater charge to avoid prejudice.

  • People v. Brown, 95 N.Y.2d 771 (2000): Lesser Included Offense Doctrine and ‘Physical Contact’ in Harassment

    People v. Brown, 95 N.Y.2d 771 (2000)

    A crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense; menacing in the second degree does not require physical contact, whereas harassment in the second degree does, thus harassment is not a lesser included offense of menacing.

    Summary

    The New York Court of Appeals addressed whether harassment in the second degree is a lesser included offense of menacing in the second degree. The Court held that it is not. The defendant was charged with menacing after swinging a baseball bat at a mental health caseworker. The defense requested a charge on harassment as a lesser included offense, which was denied. The Court of Appeals affirmed the lower court’s decision, reasoning that menacing does not require physical contact (actual, attempted, or threatened), while harassment does. Thus, it is possible to commit menacing without committing harassment.

    Facts

    On June 13, 1997, a mental health caseworker visited the defendant’s home in the course of his duties. The defendant opened the door holding an aluminum baseball bat. He cursed and swung the bat, missing the caseworker, who ducked. The caseworker wrestled the bat away from the defendant. The supervisor was notified and then called the police. The defendant was arrested and charged with menacing in the second degree.

    Procedural History

    The defendant was tried on an information in District Court. During the pre-charge conference, defense counsel requested a jury charge on harassment in the second degree as a lesser included offense. The District Court denied the request. The defendant was found guilty of menacing in the second degree. The Appellate Term affirmed the conviction. A Judge of the Court of Appeals granted the defendant leave to appeal.

    Issue(s)

    Whether harassment in the second degree is a lesser included offense of menacing in the second degree.

    Holding

    No, because it is possible to commit menacing without committing harassment, as menacing does not require physical contact while harassment does.

    Court’s Reasoning

    The Court applied the definition of a lesser included offense under CPL 1.20(37), which states that a crime constitutes a lesser included offense when “it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree.” The Court then examined the elements of menacing in the second degree (Penal Law § 120.14(1)) and harassment in the second degree (Penal Law § 240.26(1)). Menacing requires intentionally placing another person in reasonable fear of physical injury by displaying a deadly weapon or dangerous instrument. Harassment requires intent to harass, annoy, or alarm another person by striking, shoving, kicking, or otherwise subjecting such other person to physical contact, or attempting or threatening to do the same.

    The Court emphasized that the “crux” of harassment is the element of physical contact, actual, attempted, or threatened. The Court noted that while the contact need not rise to the level of assault, it must involve some form of offensive touching. Distinctly, menacing does not require any form of physical contact; it only requires an intent to place another person in reasonable fear of physical injury by displaying a weapon. Thus, it is possible to commit menacing without committing harassment. The court referenced the principle of statutory construction requiring courts “to limit general language of a statute by specific phrases which have preceded it.”

    The dissenting judge argued that menacing necessarily involves a threat of physical contact because displaying a deadly weapon or dangerous instrument with the intent to frighten someone inherently threatens physical contact. The dissent reasoned that a dangerous instrument is defined as an object “readily capable of causing” physical injury, implying the threat of physical contact.

  • People v. Glover, 86 N.Y.2d 172 (1995): Integrated Testimony and Lesser Included Offenses

    People v. Glover, 86 N.Y.2d 172 (1995)

    When the evidence of a greater offense (possession with intent to sell) and a lesser included offense (simple possession) is derived from the integrated testimony of a single witness, a charge-down to the lesser offense is not warranted unless there is a rational basis for the jury to selectively credit portions of the witness’s testimony related to simple possession while rejecting the portions related to intent to sell.

    Summary

    Glover was convicted of third-degree criminal possession of a controlled substance. At trial, the key evidence was the testimony of a police officer who witnessed Glover engaging in apparent narcotics transactions. Glover requested the trial court to submit to the jury the lesser included offense of seventh-degree criminal possession (simple possession). The trial court denied the request, and the Appellate Division affirmed. The New York Court of Appeals affirmed, holding that the officer’s testimony was integrated, meaning there was no reasonable basis to reject the portion of the testimony that described the drug sales while accepting the portion related to possession. Because the evidence of possession with intent to sell and simple possession came from the same source, the court found no rational basis for the jury to selectively credit the officer’s testimony to find Glover guilty of simple possession only.

    Facts

    A police officer, from a vantage point in a library, observed Glover engaging in two transactions from an apartment building stoop. The officer testified that Glover retrieved a bundle from the door frame, untied it, and handed glassine envelopes to individuals in exchange for money. Four glassines containing heroin were recovered from the door frame, and $74 was recovered from Glover during the arrest. Glover argued at trial that the officer’s testimony was inconsistent and that no drugs or purchasers were apprehended. He requested a jury instruction on the lesser included offense of simple possession.

    Procedural History

    The trial court denied Glover’s request to charge the jury on the lesser included offense of seventh-degree criminal possession of a controlled substance. Glover was convicted of third-degree criminal possession. The Appellate Division affirmed the judgment. 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 seventh-degree criminal possession of a controlled substance to the jury as a lesser included offense of third-degree criminal possession of a controlled substance, pursuant to CPL 300.50.

    Holding

    No, because there was no reasonable view of the evidence to support a finding that Glover committed the lesser offense but not the greater offense. The officer’s testimony was integrated, and no rational basis existed to reject only the portion describing drug sales.

    Court’s Reasoning

    The Court of Appeals relied on CPL 300.50, which allows a court to submit a lesser included offense if there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater. The Court referenced its prior decision in People v. Scarborough, where it held that where proof of guilt of both the greater and lesser offenses relies on the testimony of one witness, a charge-down to the lesser offense is appropriate if it would be reasonable for the jury to reject the portion of the witness’s testimony establishing the greater offense while crediting the portion establishing the lesser offense. However, this does not apply when no identifiable record basis exists upon which the jury might reasonably differentiate between segments of a witness’ testimony, because that would force the jury to resort to speculation. The Court found the present case indistinguishable from Scarborough, because the single witness’s testimony was essential to support a verdict of guilt for both the lesser and greater offenses. The Court stated that the officer’s testimony about Glover retrieving the drugs and dealing them was precisely what established the greater offense of possession with intent to sell. Thus, the court concluded that there was no reasonable basis upon which the jury could simultaneously credit the testimony necessary to establish simple possession and reject the same testimony insofar as it established possession with intent to sell. “[T]he identical portion of that testimony constituted the proof of both defendant’s simple possession as well as the indictment count for possession with intent to sell.”

  • People v. Maharaj, 89 N.Y.2d 987 (1997): Failure to Consider Lesser Included Offense is Reversible Error

    People v. Maharaj, 89 N.Y.2d 987 (1997)

    A trial court’s failure to consider a defendant’s request to consider a lesser included offense during a bench trial constitutes reversible error, and this error cannot be rectified after the verdict.

    Summary

    Maharaj was convicted of common-law driving while intoxicated (DWI). During the bench trial, his counsel requested the court to consider driving while impaired (DWAI) as a lesser included offense. The trial court erroneously believed DWAI was a lesser included offense of the per se statutory DWI charge, not the common-law DWI. Though the court later dismissed the DWAI conviction at sentencing, the Court of Appeals held that the initial failure to consider DWAI under the common-law DWI count was reversible error, as the court lacked the authority to reweigh the evidence after the verdict. A new trial on the common-law DWI count was ordered.

    Facts

    • Maharaj was charged with per se statutory DWI (Vehicle and Traffic Law § 1192(2)) and common-law DWI (Vehicle and Traffic Law § 1192(3)).
    • Maharaj waived his right to a jury trial.
    • During the bench trial, his attorney requested the court to consider DWAI (Vehicle and Traffic Law § 1192(1)) as a lesser included offense of the common-law DWI charge.
    • The People mistakenly argued that DWAI was a lesser included offense of the per se statutory DWI.
    • The trial court adopted the People’s mistaken belief.

    Procedural History

    • The trial court found Maharaj not guilty of per se statutory DWI but guilty of DWAI.
    • He was also found guilty of common-law DWI.
    • Maharaj moved to set aside the verdict, arguing that the trial court erred in considering DWAI as a lesser included offense of the per se statutory DWI.
    • The trial court initially dismissed the DWAI conviction but upheld the common-law DWI conviction.
    • The Appellate Division affirmed.
    • The Court of Appeals reversed, ordering a new trial on the common-law DWI count.

    Issue(s)

    1. Whether a trial court’s failure to consider a defendant’s request to consider a lesser included offense during a bench trial constitutes reversible error.
    2. Whether a trial court can rectify its error of failing to consider the lesser included offense by dismissing the conviction of the lesser offense at sentencing.

    Holding

    1. Yes, because the defendant was entitled to the court’s consideration of the lesser included offense, and the failure to do so constitutes reversible error.
    2. No, because after the formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict.

    Court’s Reasoning

    The Court of Appeals held that Maharaj was entitled to have the trial court consider DWAI as a lesser included offense of the common-law DWI, as his counsel requested. The court’s failure to do so was reversible error, analogous to a situation where a court erroneously refuses to submit a lesser included offense to a jury. The court emphasized that the fact that the judge was both fact-finder and judge of the law did not alter the outcome.

    The Court further reasoned that the trial court’s attempt to rectify the error at sentencing was ineffective and exceeded its authority. Once a verdict is rendered in a bench trial, the trial court cannot reweigh the evidence and reconsider the verdict. CPL 320.20(4) and precedent such as People v. Carter, 63 N.Y.2d 530 (1984), support this conclusion.

    The Court quoted People v Glover, 57 NY2d 61, 63-64 stating the initial error required reversal.

  • People v. Johnson, 89 N.Y.2d 905 (1996): Limits on Accepting Guilty Pleas to Unrelated Offenses

    People v. Johnson, 89 N.Y.2d 905 (1996)

    A guilty plea to a crime that is neither charged in the indictment nor a lesser included offense of a charged crime is invalid, undermining the statutory framework governing plea bargains.

    Summary

    Johnson was convicted of attempted aggravated assault under one indictment. Separately, he pleaded guilty to criminal sale of a controlled substance to satisfy charges of criminal possession of a controlled substance under a second, unrelated indictment. The Court of Appeals held that the trial court lacked jurisdiction to accept the guilty plea to criminal sale because it was not a lesser included offense of criminal possession, and no factual relationship existed between the sale and possession charges. The court emphasized the importance of adhering to the statutory limitations on guilty pleas outlined in CPL Article 220 to maintain the integrity of the plea bargaining process.

    Facts

    Johnson was charged under two separate indictments. The first indictment concerned charges for attempted aggravated assault, resulting in a conviction. The second indictment contained charges for criminal possession of a controlled substance in the third and fifth degrees. Instead of proceeding to trial on the possession charges, Johnson pleaded guilty to criminal sale of a controlled substance in the third degree, which was intended to satisfy the second indictment entirely. The plea colloquy did not reveal any factual connection between the criminal sale and the criminal possession counts, except that the offenses occurred on the same date and involved cocaine.

    Procedural History

    The Appellate Division affirmed Johnson’s conviction under both indictments. Two justices dissented regarding the second indictment, arguing that the trial court lacked jurisdiction to accept the guilty plea to criminal sale, as it was not a lesser included offense of the possession charges. A Justice of the Appellate Division granted Johnson leave to appeal to the Court of Appeals.

    Issue(s)

    Whether a trial court has jurisdiction to accept a guilty plea to an offense (criminal sale of a controlled substance) that is not charged in the indictment and is not a lesser included offense of the crimes charged (criminal possession of a controlled substance), when there is no apparent factual relationship between the offenses.

    Holding

    Yes, because CPL Article 220 strictly governs the acceptance of guilty pleas, and the plea to criminal sale violated these constraints as it was neither a charged offense nor a lesser included offense of the charged possession crimes. The plea colloquy did not establish any factual connection that would justify the acceptance of the plea.

    Court’s Reasoning

    The Court of Appeals based its decision on the provisions of CPL Article 220, which govern the acceptance of guilty pleas. The Court emphasized that CPL 220.10 specifies that “[t]he only kinds of pleas which may be entered to an indictment are those specified in this section.” Under CPL 220.10(4), a defendant may only plead guilty to one or more of the offenses charged or to lesser included offenses. Criminal sale is not a lesser included offense of criminal possession under the general statutory definition (CPL 1.20[37]) or under the specific extensions listed in CPL 220.20(1)(i). The court acknowledged two narrow exceptions to these restrictions established in People v. Foster, 19 N.Y.2d 150 (1967), but determined that these exceptions were not applicable in this case. Expanding these exceptions, the Court reasoned, would undermine the legislative policy of limiting plea bargains to offenses directly related to the charges. The Court stated, “A different result would undermine the legislative policy of article 220 to place limitations on plea bargains deviating from the crimes charged.”

  • People v. Richardson, 88 N.Y.2d 1049 (1996): Waiver of Objection to Lesser Included Offense

    People v. Richardson, 88 N.Y.2d 1049 (1996)

    A defendant who affirmatively requests that the trial court submit a lesser included offense to the jury waives the right to challenge the submission of that charge on appeal, and the production of a securing order is not always necessary to prove escape in the first degree if other evidence establishes custody pursuant to a court order.

    Summary

    Richardson was convicted of escape in the second degree and escape in the first degree. He appealed, arguing that the trial court improperly submitted the lesser included offense of escape in the second degree to the jury and that the evidence was insufficient to convict him of escape in either degree. The New York Court of Appeals affirmed the conviction, holding that Richardson waived his right to challenge the submission of the lesser charge by affirmatively requesting it and that sufficient evidence existed to prove he was in custody pursuant to a court order, even without producing the securing order itself. The Court emphasized that the defense counsel’s objection pertained to the wording, not the submission itself, of the charge.

    Facts

    Richardson was arrested and charged with rape in the first degree on October 15, 1992. While in custody, he escaped but was soon apprehended and charged with escape in the first degree. After arraignment on the rape charge, bail was set, and Richardson was incarcerated. The following day, he was arraigned on the escape charge and returned to jail. On November 25, 1992, he was taken to court for a conference with his attorney but escaped again before being taken back into custody later that day.

    Procedural History

    A grand jury indicted Richardson on charges of rape in the third degree and two counts of escape in the first degree. At trial, the crime of escape in the second degree was submitted to the jury as a lesser included offense of one of the escape in the first degree charges at the defendant’s request. The jury acquitted Richardson of rape but convicted him of escape in the second degree and escape in the first degree. The Appellate Division upheld the conviction, and leave to appeal was granted.

    Issue(s)

    1. Whether the Appellate Division erred in holding that Richardson waived any objection to the submission of the lesser included offense of escape in the second degree by requesting it be submitted to the jury.

    2. Whether the evidence was sufficient to convict Richardson of escape in either the first or second degrees, particularly given the lack of production of the securing order.

    Holding

    1. Yes, because by affirmatively requesting that the trial court submit the lesser charge to the jury, Richardson waived his right to challenge the submission of the lesser charge on appeal.

    2. Yes, because the trial testimony established that Richardson was in custody pursuant to a court order, making the production of the securing order unnecessary.

    Court’s Reasoning

    The Court of Appeals found that Richardson waived his right to challenge the submission of the lesser included offense because his attorney affirmatively requested that the trial court submit the lesser charge to the jury. The court cited People v. Ford, 62 NY2d 275, 283, for the principle that a defendant cannot request a specific charge and then claim error on appeal. The objection at trial was addressed to the wording of the charge, not its submission. The court stated, “by affirmatively requesting that the trial court submit the lesser charge to the jury, defendant waived his right to challenge the submission of the lesser charge on appeal.”

    Regarding the sufficiency of the evidence for the escape charges, the court held that production of the securing order was not necessary to establish escape in the first degree. The court relied on the testimony of the court clerk and the investigator who were present at the arraignment, indicating that the judge directed the clerk to prepare the securing order after the arraignment and that the judge set bail and signed a securing order. This testimony established that Richardson was in custody pursuant to a court order, satisfying the elements of the crime. The court cited CPLR 4543 in support of using this type of evidence.

    The court emphasized that “[p]roduction of the securing order is not, however, necessary to establish this charge.” This clarifies that while a securing order is ideal evidence, other forms of evidence proving the defendant was in custody under court order are acceptable.

  • People v. Butler, 84 N.Y.2d 627 (1994): Intoxication Instruction and Lesser Included Offenses

    84 N.Y.2d 627 (1994)

    A trial court’s decision to give an intoxication instruction does not automatically require the court to also give lesser-included offense instructions; the decision to give lesser-included offense instructions must be based on an independent evaluation of the evidence.

    Summary

    Sidney Butler was convicted of second-degree murder and criminal possession of a weapon. The Appellate Division reversed, finding the trial court erred in refusing to instruct the jury on the lesser-included offense of first-degree manslaughter after giving an intoxication instruction. The Court of Appeals reversed, holding that an intoxication instruction does not automatically trigger an obligation to instruct on lesser-included offenses. The court emphasized that each instruction must be independently justified by the evidence presented and that the brutality of the crime indicated intent rather than recklessness or intent to only seriously injure. The case was remitted to the Appellate Division for further proceedings.

    Facts

    The victim, Anderson, spent the evening socializing before meeting Butler and her cousin at a taxi dispatcher’s office. The group consumed alcohol, marijuana, and cocaine. The dispatcher ended the gathering, and a taxi took Anderson and Butler to Anderson’s apartment. Anderson was discovered semiconscious outside her apartment the next morning, covered in blood, and later died from head injuries and 34 stab wounds. Butler was arrested and charged with murder.

    Procedural History

    Butler was convicted in Westchester County Court. The Appellate Division reversed the conviction, ordering a new trial because the trial court refused to instruct the jury on manslaughter in the first degree, despite giving an intoxication instruction. The dissenting Justice at the Appellate Division granted the People leave to appeal to the Court of Appeals.

    Issue(s)

    Whether a trial court’s decision to give an intoxication instruction automatically requires the court to give lesser-included offense instructions within the homicide classification, specifically manslaughter in the first and second degrees.

    Holding

    No, because an intoxication instruction does not mechanically trigger a corresponding obligation for the trial court to give complementary lesser-included offense instructions. The decision to give lesser-included offense instructions must be based on the appraisal of the particular evidence, not pure logic.

    Court’s Reasoning

    The Court of Appeals reasoned that CPL 300.50 requires a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater. The court emphasized the importance of evidentiary assessment, stating, “the evidence of the particular case, not pure or abstract logic, governs.” The court distinguished this case, noting the brutality of the crime (34 stab wounds, 9 of which were fatal) indicated an intent to kill, not merely to cause serious injury or act recklessly. The court also highlighted that if the jury believed the intoxication evidence, they should have acquitted the defendant of murder, not found him guilty of a lesser offense. The court stated that allowing the jury to decide that defendant acted recklessly would be contrary to the rational and common sense view of the evidence. The dissent argued that the trial court should have instructed the jury on manslaughter in the second degree (reckless homicide) because, under Penal Law § 15.05(3), evidence of intoxication cannot be used to negate recklessness. The majority rejected this, concluding that the ferocity of the attack precluded a finding of recklessness, and the crime was “intentional murder in the second degree or nothing.”

    Notably, the court stated: “In the end, the burden remains always on the People to establish beyond a reasonable doubt that defendant, despite the possible effect of the arguable intoxication evidence, was capable of and did form the necessary intent to kill.”

  • People v. Flores, 84 N.Y.2d 951 (1994): Preserving Arguments for Appeal and Lesser Included Offenses

    People v. Flores, 84 N.Y.2d 951 (1994)

    A defendant’s failure to raise a specific argument for dismissal at trial, such as the lack of evidence of a bona fide offer to sell drugs, forfeits the right to raise that argument on appeal; furthermore, a defendant is not entitled to a jury charge on a lesser included offense unless there is a reasonable view of the evidence to support a finding that the elements of the greater offense were not met.

    Summary

    The defendant was convicted on multiple counts of criminal sale of a controlled substance. The charges stemmed from a completed sale and two separate offers to sell cocaine to an undercover officer. The Appellate Division reduced some convictions due to a lack of independent weight evidence. On appeal to the New York Court of Appeals, the defendant argued that the convictions based on the offers should be reversed because the prosecution failed to prove that the offers were bona fide. He also argued he was entitled to a jury charge on a lesser-included offense for the completed sale. The Court of Appeals affirmed, holding that the defendant’s argument regarding the offers was not preserved for appeal and that no reasonable view of the evidence supported a lesser-included offense charge.

    Facts

    On March 28, 1990, the defendant sold over four ounces of cocaine to an undercover police officer for $3,700. On April 5, 1990, and May 23, 1990, the defendant offered to sell specific quantities of cocaine to the same undercover officer for agreed-upon prices; however, no exchange of money or drugs occurred on either of these latter occasions.

    Procedural History

    The defendant was indicted on five counts, including criminal sale in the first degree for the April 5 transaction and criminal sale in the second degree for the May 23 transaction. He was convicted on two counts of criminal sale of a controlled substance in the first degree (March 28 and April 5 transactions) and one count of criminal sale of a controlled substance in the second degree (May 23 transaction). The Appellate Division modified the judgment, reducing the April 5 and May 23 convictions to criminal sale in the third degree because there was no independent evidence of the drugs’ weight offered for sale. The defendant then appealed to the Court of Appeals.

    Issue(s)

    1. Whether the defendant’s argument that the prosecution failed to prove a knowing sale (i.e., bona fide offers) for the April 5 and May 23 transactions was preserved for appellate review, given that the argument raised at trial was that there were no consummated sales.
    2. Whether the trial court erred in refusing to charge the jury on the lesser included offense of criminal sale of a controlled substance in the third degree for the March 28 transaction.

    Holding

    1. No, because the argument now raised on appeal (lack of evidence of a bona fide offer to sell) was not the ground for dismissal argued at trial.
    2. No, because there was no reasonable view of the evidence that could support a finding that the weight of the drugs was less than two ounces, which is a necessary element for the lesser included offense.

    Court’s Reasoning

    Regarding the unpreserved argument, the Court noted the defendant argued at trial only that the People had not proven consummated sales. The Court reasoned that this argument was inconsistent with the argument now raised on appeal. The Court stated, “If, as defendant now asserts, the evidence was insufficient to demonstrate the mens rea element for criminal sale, it also would have been insufficient to sustain a conviction for attempt…” Because the defendant did not raise the issue of mens rea at trial, the Court deemed it unpreserved and thus not reviewable on appeal.

    Regarding the lesser included offense charge, the Court applied CPL 300.50 (1), (2) noting that a defendant is only entitled to a charge on a lesser included offense if there is a reasonable view of the evidence which could support a finding that the weight of the drugs was less than two ounces. The forensic evidence and the undercover officer’s testimony indicated that the cocaine sold on March 28 weighed over four ounces. Because there was no evidence to suggest a weight less than two ounces, the Court concluded that the defendant was not entitled to a charge on the lesser included offense.

  • People v. Montalvo, 86 N.Y.2d 826 (1995): Duty to Charge Lesser Included Offense

    People v. Montalvo, 86 N.Y.2d 826 (1995)

    A defendant is entitled to a jury charge on a lesser included offense if (1) the additional offense is a lesser included offense and (2) there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser included offense but not the greater offense.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the defendant was entitled to a jury instruction on criminally negligent homicide as a lesser included offense of manslaughter in the second degree. The court reasoned that while the defendant intentionally stabbed the victim, a reasonable view of the evidence could suggest he was unaware that the stabbing would result in death, thus supporting a finding of criminal negligence rather than intentional manslaughter. The court also held that the defendant’s claim of prosecutorial misconduct during summation was unpreserved for review.

    Facts

    The defendant, Montalvo, stabbed the victim, Golofit. He was charged with manslaughter in the second degree. At trial, Montalvo requested that the judge also instruct the jury on criminally negligent homicide as a lesser included offense.

    Procedural History

    The trial court denied Montalvo’s request for a jury instruction on criminally negligent homicide. Montalvo was convicted of manslaughter in the second degree. The Appellate Division reversed, holding that the trial court erred in not instructing the jury on the lesser included offense. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether criminally negligent homicide is a lesser included offense of manslaughter in the second degree.
    2. Whether there was a reasonable view of the evidence to support a finding that the defendant committed criminally negligent homicide but not manslaughter in the second degree.
    3. Whether the prosecutor’s remarks during summation were so prejudicial as to deprive the defendant of a fair trial.

    Holding

    1. Yes, because it is undisputed that criminally negligent homicide is a lesser included offense of manslaughter in the second degree.
    2. Yes, because a reasonable view of the record evidence supports a finding that defendant was not aware that stabbing Golofit would result in his death.
    3. No, because the issue was not properly preserved for appellate review.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s order, agreeing that Montalvo was entitled to a jury instruction on criminally negligent homicide. The court reiterated the two-pronged test for entitlement to a lesser included offense charge: (1) the additional offense 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 included offense but not the greater offense. The court found that both prongs were satisfied. First, it was undisputed that criminally negligent homicide is a lesser included offense of manslaughter in the second degree (citing People v. Stanfield, 36 NY2d 467). Second, the court emphasized that the intentional nature of the stabbing did not preclude a finding of criminal negligence. The court stated, “In criminal negligence, a person acts with the requisite culpable mental state when such person fails to perceive a substantial and unjustifiable risk that the act in question will cause the statutorily described result (Penal Law § 15.05 [4]).” The court further clarified that “criminal negligence analysis focuses on the actor’s awareness of the risk that death will result from the act, not whether the underlying act is intentional.” Because a reasonable view of the evidence could suggest that Montalvo was unaware that stabbing Golofit would result in death, the instruction should have been given. Finally, the court held that Montalvo’s claim regarding the prosecutor’s summation was unpreserved because defense counsel did not object further or request a mistrial after the trial judge issued curative instructions. The court cited People v. Williams, 46 NY2d 1070, 1071, stating that under these circumstances, “the curative instructions must be deemed to have corrected the error to the defendant’s satisfaction”.

  • People v. Faulkner, 76 N.Y.2d 580 (1990): Jury Instructions on Lesser Included Offenses and Risk Perception

    People v. Faulkner, 76 N.Y.2d 580 (1990)

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

    Summary

    Faulkner was convicted of manslaughter in the second degree and weapons charges after fatally shooting a bystander during a fight. At trial, he requested a jury instruction on criminally negligent homicide as a lesser-included offense, which the court denied. The New York Court of Appeals affirmed the conviction, holding that no reasonable view of the evidence supported a finding that Faulkner committed criminally negligent homicide but not manslaughter in the second degree. The court emphasized that the defendant’s actions of pulling out a loaded gun, aiming into a crowd, and disregarding a warning not to shoot demonstrated recklessness, negating any reasonable basis for a finding of mere failure to perceive risk.

    Facts

    Defendant Faulkner was involved in a fight at a block party.
    During the altercation, Faulkner pulled out a loaded handgun.
    He aimed the gun at a fleeing man he had been fighting with in a crowded area.
    A companion warned Faulkner not to shoot because of the presence of a crowd.
    The gun discharged when Faulkner’s arm was bumped, fatally wounding a bystander.

    Procedural History

    Faulkner was convicted of manslaughter in the second degree and weapons charges in the trial court.
    Faulkner appealed, arguing that the trial court erred in refusing to instruct the jury on criminally negligent homicide as a lesser-included offense.
    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 refusing to instruct the jury on criminally negligent homicide as a lesser-included offense of manslaughter in the second degree.

    Holding

    No, because no reasonable view of the evidence supported a finding that Faulkner committed criminally negligent homicide but not manslaughter in the second degree.

    Court’s Reasoning

    The Court of Appeals reasoned that a defendant is entitled to a lesser-included offense charge only if there is a reasonable view of the evidence to support a finding that he committed the lesser offense but not the greater offense. While recklessness (required for manslaughter in the second degree) encompasses criminal negligence, the evidence did not support a finding of the latter without the former.

    The court emphasized that Faulkner’s actions demonstrated a conscious disregard of a substantial and unjustifiable risk (recklessness), rather than a mere failure to perceive such a risk (criminal negligence). The court noted that Faulkner pulled out a loaded weapon, aimed it into a crowded area, and ignored a warning not to shoot. “Nothing in the evidence presented could reasonably suggest that defendant failed to perceive the substantial and unjustifiable risk.”

    Therefore, the trial court properly refused to instruct the jury on criminally negligent homicide, as no reasonable jury could have found that Faulkner was merely negligent rather than reckless.