New York Law Review

Tag: Lesser Included Offense

  • People v. Cabassa, 79 N.Y.2d 722 (1992): Jury Instruction on Lesser Included Offense of Attempted Assault

    People v. Cabassa, 79 N.Y.2d 722 (1992)

    A court must submit a lesser included offense to the jury if it is impossible to commit the greater offense without committing the lesser offense and there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater.

    Summary

    Cabassa and Lind were convicted of attempted murder and criminal use of a firearm after a high-speed chase where Lind, a passenger in Cabassa’s car, fired shots at pursuing police officers. The Court of Appeals reversed Cabassa’s conviction because the trial court failed to instruct the jury on the lesser included offense of attempted assault in the second degree. The Court held that a jury could reasonably conclude that Lind and Cabassa intended to injure, rather than kill, the officers. Lind’s conviction was affirmed because he failed to request the lesser included offense instruction.

    Facts

    Plainclothes officers in an unmarked taxi observed a Cadillac with inoperable taillights driven by Cabassa, with Lind as a passenger. After the officers identified themselves and instructed the occupants to pull over, Cabassa sped through a red light, initiating a high-speed chase. During the chase, Lind fired several shots at the pursuing police vehicle. Cabassa drove towards a roadblock established by uniformed officers while Lind fired at one of them. Cabassa eventually crashed the car, and both were apprehended.

    Procedural History

    Cabassa and Lind were convicted in the trial court of attempted murder and criminal use of a firearm. Cabassa appealed, arguing that the trial court erred in failing to instruct the jury on the lesser included offense of attempted assault and in allowing him to deliver his own summation without ensuring a knowing waiver of counsel. The Appellate Division affirmed the convictions. Cabassa appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the trial court erred by refusing to instruct the jury on the lesser included offense of attempted assault in the second degree.
    2. Whether the trial court erred in permitting Cabassa to proceed pro se by delivering his own summation without a proper waiver of counsel.

    Holding

    1. Yes, because there was a reasonable view of the evidence to support a finding that Cabassa committed attempted assault rather than attempted murder.
    2. No, because Cabassa did not proceed fully pro se, as his counsel remained and participated in the defense.

    Court’s Reasoning

    The Court of Appeals stated that a lesser offense must be submitted to the jury if (1) it is actually a lesser included offense of the greater charge, and (2) the jury is warranted in finding that the defendant committed the lesser but not the greater crime. Attempted assault in the second degree is a lesser included offense of attempted murder because one who attempts murder necessarily attempts assault. The critical question was whether a reasonable view of the evidence supported a finding that Cabassa only intended to injure, not kill, the officers.

    The Court reasoned that the jury could have found that Lind was shooting to injure rather than kill, considering the circumstances: the moving target, high speeds, and frequent lane changes. The jury could believe that the intent was to distract the driver, cause an accident, or seriously injure and incapacitate the officers to end the chase. Regarding Cabassa’s intent, a juror could reasonably find that he did not share Lind’s intent to kill, even if Lind had that intent. Therefore, the attempted assault charge should have been submitted.

    The Court distinguished between proceeding pro se, which requires a searching inquiry into the defendant’s understanding of the risks, and merely participating in one’s defense. Since Cabassa’s counsel remained and participated, there was no need for a searching inquiry. While alerting a defendant to the benefits of counsel is preferable before granting limited participation, it is not legally required. The court noted Lind did not request or join Cabassa’s request for the charge down and thus waived the argument for appeal.

  • In re Michael W., 64 N.Y.2d 793 (1985): Adjudication Based on Lesser Included Offense in Juvenile Delinquency Cases

    In re Michael W., 64 N.Y.2d 793 (1985)

    A Family Court may adjudicate a youth a juvenile delinquent based upon a finding that a lesser included crime, not specifically charged in the petition, has been committed.

    Summary

    The New York Court of Appeals affirmed an order adjudicating a juvenile delinquent based on a lesser included offense than the one originally charged in the petition. The court held that Family Courts have the authority to adjudicate a youth as a juvenile delinquent based on a lesser included crime, even if that crime was not explicitly stated in the petition. The court reasoned that Section 345.1(2) of the Family Court Act does not preclude judges from considering lesser included crimes, and that Section 321.2 allows judges to accept admissions to lesser included crimes, indicating legislative intent to permit adjudications based on such offenses.

    Facts

    A juvenile delinquency petition was filed against Michael W. charging him with assault in the second degree. The Family Court ultimately found that Michael W. committed the lesser included crime of assault in the third degree.

    Procedural History

    The Family Court adjudicated Michael W. a juvenile delinquent based on the lesser included offense. The Appellate Division affirmed the Family Court’s decision. Michael W. appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the Family Court can base a juvenile delinquency adjudication on a finding that the accused committed a lesser included crime of the crime charged in the petition?

    Holding

    1. Yes, because the Family Court has long been recognized as possessing the authority to adjudicate a youth a juvenile delinquent based upon a finding that a lesser included crime, not specifically charged in the petition, has been committed.

    Court’s Reasoning

    The Court of Appeals held that the Family Court acted properly in adjudicating Michael W. a juvenile delinquent based upon a finding that he had committed a lesser included crime. The court reasoned that this practice has been recognized for a long time, citing Matter of Raymond O., 31 NY2d 730, 731. The court rejected the argument that section 345.1(2) of the Family Court Act requires a different result. The court stated that this section has been part of the Family Court Act since 1962, yet it has never been construed as precluding Family Court Judges from considering whether a respondent in a juvenile delinquency proceeding has committed a lesser included crime.

    The Court further noted that the appellant’s position is difficult to reconcile with section 321.2 of the Family Court Act, which specifically empowers Family Court Judges to accept admissions to lesser included crimes. As the Appellate Division aptly noted, the Legislature could not have intended to deny Family Court Judges the authority to base juvenile delinquency adjudications upon a finding that a lesser included crime, when it specifically authorized them to accept admissions to such crimes.

    The court in Matter of Raymond O. (31 NY2d 730, 731) stated: “The fact that the petition charged acts which, if proven, would constitute a felony does not preclude the court from finding that the acts established the commission of a lesser included offense constituting only a misdemeanor.” This principle underscores the Family Court’s flexibility in considering lesser included offenses.

  • In re Dwight M., 80 N.Y.2d 792 (1992): Adjudication of Juvenile Delinquency Based on Lesser Included Offense

    80 N.Y.2d 792 (1992)

    A Family Court may adjudicate a youth a juvenile delinquent based on a finding that they committed a lesser included crime, even if that specific crime was not explicitly charged in the original petition.

    Summary

    This case addresses whether a Family Court can adjudicate a juvenile delinquent based on a lesser included offense when the petition only charged a greater offense. The Court of Appeals held that the Family Court does possess such authority. The court reasoned that the Family Court Act doesn’t preclude judges from considering lesser included offenses, and that a contrary holding would conflict with the provision allowing judges to accept admissions to lesser included crimes. The court affirmed the Appellate Division’s order, upholding the juvenile delinquency adjudication based on assault in the third degree, a lesser included offense of the charged assault in the second degree.

    Facts

    Dwight M. was charged with assault in the second degree in a juvenile delinquency petition. The Family Court, however, found that he committed the lesser included offense of assault in the third degree. Based on this finding, Dwight M. was adjudicated a juvenile delinquent. Dwight M. appealed, arguing that the adjudication was improper because the petition only charged the greater offense.

    Procedural History

    The Family Court adjudicated Dwight M. a juvenile delinquent. The Appellate Division affirmed the Family Court’s decision. Dwight M. appealed to the Court of Appeals of the State of New York.

    Issue(s)

    Whether the Family Court can base a juvenile delinquency adjudication on a finding that the juvenile committed a lesser included crime, even when that crime was not specifically charged in the petition.

    Holding

    Yes, because the Family Court Act does not preclude Family Court judges from considering lesser included offenses, and because a contrary holding would be inconsistent with the provision allowing judges to accept admissions to lesser included crimes.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division’s order, holding that the Family Court has the authority to adjudicate a youth a juvenile delinquent based on a finding that a lesser included crime, not specifically charged in the petition, has been committed. The court relied on its prior decision in Matter of Raymond O., 31 N.Y.2d 730 (1972), which recognized this authority. The court rejected the argument that section 345.1(2) of the Family Court Act required a different result, noting that this section has been part of the Family Court Act since its inception and has never been construed to preclude consideration of lesser included crimes. The court found that the appellant’s position would be difficult to reconcile with section 321.2 of the Family Court Act, which specifically empowers Family Court judges to accept admissions to lesser included crimes. The court reasoned that the Legislature could not have intended to deny Family Court judges the authority to base juvenile delinquency adjudications on lesser included offenses when it had specifically authorized them to accept admissions to such crimes. The court stated: “That section’s requirement that a juvenile delinquency petition be dismissed if its allegations have not been established has been part of the Family Court Act since it was first adopted in 1962 (L 1962, ch 686, § 751). It, however, has never before been construed as precluding Family Court Judges from considering whether a respondent in a juvenile delinquency proceeding has committed a lesser included crime (see, Matter of Raymond O., supra [decided 10 years after the enactment of former section 751 of the Family Court Act]), and we can discern no reason why it should be so construed today.”

  • People v. Menchetti, 76 N.Y.2d 473 (1990): Validity of Waiver of Indictment for Lesser Included Offenses

    People v. Menchetti, 76 N.Y.2d 473 (1990)

    A defendant held for grand jury action on an offense may waive indictment and plead to a superior court information charging a lesser included offense of the original charge.

    Summary

    Menchetti was charged with third-degree criminal possession of a weapon. He waived indictment and pleaded guilty to fourth-degree criminal possession of a weapon via a superior court information. The Appellate Division reversed, finding the information jurisdictionally defective because it charged a different offense than the felony complaint. The New York Court of Appeals reversed, holding that a waiver of indictment is valid even if the superior court information charges a lesser included offense, as a defendant held for grand jury action is held for all lesser included offenses as well.

    Facts

    Defendant fired a gun during an altercation on a public street.

    He was charged via felony complaint with third-degree criminal possession of a weapon.

    At arraignment, defendant waived a felony hearing and was held for grand jury action.

    Pursuant to plea negotiations, defendant waived indictment and agreed to be prosecuted via superior court information charging fourth-degree criminal possession of a weapon.

    Defendant pleaded guilty to the fourth-degree charge and was sentenced.

    Procedural History

    The Supreme Court accepted the waiver and guilty plea.

    The Appellate Division reversed and dismissed the superior court information, holding that it was jurisdictionally defective because the information charged a different offense than the felony complaint.

    The Court of Appeals granted the People leave to appeal.

    Issue(s)

    Whether a defendant’s waiver of indictment is effective when the superior court information charges a lesser included offense of the offense charged in the felony complaint.

    Whether fourth-degree criminal possession of a weapon is a lesser included offense of third-degree criminal possession of a weapon.

    Holding

    Yes, because a defendant held for grand jury action on an offense is also held for grand jury action on all lesser included offenses. The waiver extends to those lesser included offenses.

    Yes, because it is impossible to commit third-degree criminal possession of a weapon without also committing fourth-degree criminal possession of a weapon.

    Court’s Reasoning

    The Court of Appeals reasoned that Article I, § 6 of the New York Constitution and CPL 195.20 permit a waiver of indictment when the information charges any offense for which the defendant was held for grand jury action. Since a defendant is held for grand jury action on lesser included offenses as well as the greater offense charged in the felony complaint, the waiver is valid.

    The court cited CPL 190.65, 210.20(1)(b), and 210.30(1) to support the premise that a defendant held for grand jury action on a greater offense is also held for any lesser included offenses.

    The court further held that fourth-degree criminal possession of a weapon is a lesser included offense of third-degree criminal possession of a weapon under the test articulated in People v. Glover, 57 N.Y.2d 61 (1982): it is impossible to commit the greater offense (third-degree possession) without also committing the lesser offense (fourth-degree possession).

    The Court rejected the argument that permitting waiver by plea to a lesser included offense might circumvent plea-bargaining restrictions in CPL 220.10, because in this case, the plea did not violate those restrictions.

    The court emphasized the purpose of the constitutional amendment and implementing statute: “to allow a defendant who wishes to go directly to trial without waiting for a grand jury to hand up an indictment to do so”.

    The court quoted CPL 195.20, which states that the offenses named in the waiver “may include any offense for which the defendant was held for action of a grand jury”.

    Significantly, the court noted that “an infringement upon the right to prosecution by indictment is jurisdictional and cannot be waived by guilty plea”.

  • People v. Ford, 69 N.Y.2d 870 (1987): Sexual Abuse as a Lesser Included Offense of Sodomy

    People v. Ford, 69 N.Y.2d 870 (1987)

    Sexual abuse in the first degree is not a lesser included offense of first-degree sodomy because it is possible to commit sodomy without the actor necessarily intending to gratify sexual desire, which is an element of sexual abuse.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that sexual abuse in the first degree is not a lesser included offense of first-degree sodomy. The court reasoned that sodomy can be committed without the specific intent of sexual gratification, an element required for sexual abuse. Therefore, it is possible to commit sodomy without simultaneously committing sexual abuse. The court emphasized that the jury could properly convict the defendant of both crimes based on the same conduct, as the trial court was not required to submit the charges in the alternative.

    Facts

    The defendant was convicted of both first-degree sodomy and first-degree sexual abuse based on the same conduct. The specific details of the conduct are not provided in the opinion but are assumed to involve acts that could potentially constitute both crimes.

    Procedural History

    The trial court allowed the jury to convict the defendant of both first-degree sodomy and first-degree sexual abuse. The defendant appealed, arguing that sexual abuse is a lesser included offense of sodomy, and therefore, a conviction on both counts for the same conduct was improper. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals then reviewed the Appellate Division’s order.

    Issue(s)

    Whether sexual abuse in the first degree is a lesser included offense of first-degree sodomy, such that a defendant cannot be convicted of both crimes based on the same conduct.

    Holding

    No, because it is possible to commit the crime of sodomy without, by the same conduct, necessarily committing the crime of sexual abuse, as sodomy does not require the element of sexual gratification, which is required for sexual abuse.

    Court’s Reasoning

    The Court of Appeals based its reasoning on the statutory definitions of sodomy and sexual abuse, referencing Penal Law § 130.65 and § 130.50. The court applied the “impossibility test” derived from CPL 1.20 [37] and People v. Glover, 57 NY2d 61, which dictates that a crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense. The court highlighted that sexual abuse requires “sexual contact,” which is defined in Penal Law § 130.00 [3] as “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.” The court reasoned that because sodomy, as established in People v. Wheeler, 67 NY2d 960, can be committed without the actor having the purpose of sexual gratification, it is possible to commit sodomy without also committing sexual abuse. Therefore, the trial court was not required to submit the charges in the alternative, and the jury’s conviction on both counts was proper under CPL 300.40 [3]. The court concluded, “The trial court thus was not required to submit these charges in the alternative, and the jury could properly convict the defendant of both crimes based on the same conduct (CPL 300.40 [3]).” The court’s decision turns on a strict interpretation of the elements of each crime and the requirement that the lesser included offense must be inherently committed when the greater offense is committed.

  • People v. Garwell, 68 N.Y.2d 674 (1986): Lesser Included Offense Must Be Theoretically Impossible to Commit the Greater Without Committing the Lesser

    People v. Garwell, 68 N.Y.2d 674 (1986)

    A defendant is entitled to a jury charge on a lesser included offense only if it is theoretically impossible to commit the greater offense without also committing the lesser offense.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for robbery, holding that the trial court properly denied the defendant’s request for a jury charge on criminal possession of stolen property as a lesser included offense. The Court reasoned that the definition of robbery, which includes the use of force, does not require the element of possession inherent in criminal possession of stolen property. Thus, it is theoretically possible to commit robbery without also committing criminal possession of stolen property, failing the “theoretical impossibility” test established in People v. Glover. Therefore, the defendant was not entitled to the requested charge.

    Facts

    The defendant was convicted of two counts of first-degree robbery and one count of second-degree robbery after a jury trial. At trial, the defendant requested that the judge instruct the jury on criminal possession of stolen property in the third degree as a lesser included offense of robbery. The trial court denied this request.

    Procedural History

    The defendant was convicted in the trial court. The Appellate Division affirmed the conviction. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request for a jury charge of criminal possession of stolen property in the third degree as a lesser included offense of robbery.

    Holding

    No, because criminal possession of stolen property in the third degree is not a lesser included offense of robbery, as it is theoretically possible to commit robbery without also committing criminal possession of stolen property.

    Court’s Reasoning

    The Court of Appeals applied the “theoretical impossibility” test derived from People v. Glover to determine whether criminal possession of stolen property is a lesser included offense of robbery. The Court emphasized that criminal possession of stolen property requires possession or control over tangible property, as defined in Penal Law § 10.00 (8). Conversely, robbery, as defined in Penal Law §§ 160.15 and 160.10, does not require proof of possession. The court stated that because the statutory definitions of the robbery crimes do not include possession as a necessary element, “the ‘theoretical impossibility’ test in the definition of a lesser included offense cannot be met.” The Court concluded that since it is theoretically possible to commit robbery without possessing the stolen property, the trial court correctly denied the defendant’s request for a jury charge on the lesser included offense. The court reasoned that the inquiry ends once it is determined that the theoretical impossibility test is not met; there is no need to consider whether a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but not the greater offense.

  • People v. Boettner, 69 N.Y.2d 149 (1986): Jury Instructions on Lesser Included Offenses

    People v. Boettner, 69 N.Y.2d 149 (1986)

    A jury should be instructed to consider a lesser included offense only if they unanimously find the defendant not guilty of the greater offense.

    Summary

    The case addresses the appropriate jury instruction when a lesser included offense is submitted. The defendant, convicted of driving while intoxicated, argued the trial court erred by instructing the jury to consider the lesser included offense of driving while impaired only if they found him not guilty of the greater offense. The New York Court of Appeals affirmed the conviction, holding that the jury must unanimously acquit the defendant of the greater offense before considering the lesser. The court reasoned that allowing consideration of the lesser offense without unanimous acquittal of the greater could lead to compromise verdicts and undermine the prosecution’s right to retry the defendant on the greater offense if the jury is deadlocked.

    Facts

    A police officer observed the defendant driving erratically, including making wide turns and crossing the center line. Upon stopping the vehicle, the officer noticed signs of intoxication, including the smell of alcohol, bloodshot eyes, and slurred speech. The defendant refused a chemical test to determine blood alcohol level. At trial, the defendant presented evidence that he had consumed only two alcoholic drinks earlier in the morning. The defense requested that the jury be instructed it could consider the lesser included offense of driving while impaired if they found the defendant not guilty, or if they were “unable to reach” a verdict on the greater offense.

    Procedural History

    The defendant was convicted in the trial court of operating a motor vehicle while under the influence of alcohol as a felony. He appealed to the Appellate Division, arguing that the jury instructions were erroneous. The Appellate Division affirmed the judgment. The defendant appealed to the New York Court of Appeals, which affirmed the Appellate Division’s order.

    Issue(s)

    Whether a jury should be instructed to consider a lesser included offense only if it finds the defendant not guilty of the greater offense, or whether the jury can consider the lesser offense if it is unable to reach a verdict on the greater offense.

    Holding

    No, because the jury must unanimously acquit the defendant of the greater offense before considering any lesser included offense. Permitting consideration of the lesser offense without a unanimous acquittal on the greater offense could lead to compromise verdicts and improperly bar retrial on the greater offense.

    Court’s Reasoning

    The Court of Appeals relied on precedent and statutory interpretation. Although CPL 300.50(4) does not directly address the transition instruction, the court stated that its enactment was intended to reflect the existing judicial interpretation. The court rejected the defendant’s argument that the jury should be allowed to consider the lesser offense if they are “unable to agree” on the greater offense, reasoning that this could lead to compromise verdicts. The court emphasized the jury’s duty to render a just verdict based on the facts and the law, not on sympathy or compromise. The court distinguished federal cases that allow an “unable to agree” transition charge, noting that the federal rule does not automatically deem a conviction of a lesser offense an acquittal of the greater for double jeopardy purposes, as does CPL 300.50(4). The court disapproved of prior inconsistent holdings in People v. Baker and Matter of Kitt v. Haft. As the Court stated: “It is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged (People v Mussenden, 308 NY 558, 562, supra).”

  • People v. Wheeler, 67 N.Y.2d 960 (1986): Defining Lesser Included Offenses in New York Criminal Law

    People v. Wheeler, 67 N.Y.2d 960 (1986)

    A crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense.

    Summary

    The New York Court of Appeals affirmed the lower court’s decision, holding that attempted sexual abuse in the first degree is not a lesser included offense of attempted rape in the first degree. The court reasoned that it is possible to commit attempted rape without necessarily having the specific intent to gratify sexual desire, which is a required element of sexual abuse. Therefore, because it is not impossible to commit the greater offense (attempted rape) without committing the lesser offense (attempted sexual abuse), the defendant’s request for a jury instruction on the lesser charge was properly denied.

    Facts

    The defendant was indicted for attempted rape in the first degree. At trial, the defendant requested that the court also submit to the jury the charge of attempted sexual abuse in the first degree as a lesser included offense. The trial court denied this request.

    Procedural History

    The trial court refused the defendant’s request to charge the jury on attempted sexual abuse as a lesser included offense. The Appellate Division affirmed this decision. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether attempted sexual abuse in the first degree is a lesser included offense of attempted rape in the first degree, such that the trial court was required to instruct the jury on the lesser charge.

    Holding

    No, because it is not impossible to commit attempted rape in the first degree without also committing attempted sexual abuse in the first degree.

    Court’s Reasoning

    The Court of Appeals based its decision on the statutory definitions of rape and sexual abuse. Rape in the first degree, under Penal Law § 130.35, requires “sexual intercourse with a female * * * by forcible compulsion.” Sexual intercourse, under Penal Law § 130.00(1), “has its ordinary meaning and occurs upon any penetration, however slight.” Sexual abuse in the first degree, under Penal Law § 130.65(1), requires subjecting “another person to sexual contact * * * by forcible compulsion.” Sexual contact, under Penal Law § 130.00(3), is “any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party.”

    The court emphasized the element of intent: while rape requires only penetration, however slight, sexual abuse requires the specific intent of gratifying sexual desire. The court stated: “Although it would be impossible to commit the crime of rape without ‘touching of the sexual or other intimate parts’ of the victim, it is, of course, possible to commit rape without the actor having as his purpose the gratification of either party’s sexual desire.”

    The court further noted that nonsexual motives for rape, such as a desire to humiliate, injure, or dominate the victim, have been recognized. Because the “impossibility” test for a lesser included offense was not met, the trial court properly refused to submit the charge of attempted sexual abuse to the jury.

  • People v. Blim, 63 N.Y.2d 718 (1984): When a Lesser Included Offense Instruction is Not Required

    63 N.Y.2d 718 (1984)

    A trial court is not required to charge a lesser included offense to the jury if there is no reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater offense.

    Summary

    Defendant Blim was convicted of burglary in the third degree. At trial, he requested a jury instruction on the lesser included offense of criminal trespass in the third degree, which the trial court denied. The Appellate Division reversed, finding that the lesser included offense should have been submitted to the jury. The New York Court of Appeals reversed the Appellate Division, holding that under no reasonable view of the evidence could the jury have found that the defendant committed the lesser offense but not the greater. The court reasoned that the key witness’s testimony could not be rationally dissected to accept the unlawful entry but reject the intent to commit a crime therein.

    Facts

    In the early morning hours, Sergeant Avery responded to a burglar alarm at the Moose Lodge. He saw two people running, one of whom he recognized as the defendant, Blim. James Lewis, the other individual, was apprehended. Avery found crowbars, a flashlight, and damage to the door, indicating forced entry. Lewis testified that he and Blim entered the lodge with the intent to open the safe and steal money. They left briefly after noticing a flashing red light but returned. Lewis took $12 from a metal box, while Blim went to the room containing the safe. They fled when they saw a Sheriff’s car and were ordered to halt. A barmaid testified that $11 was missing from the metal box. The lodge governor confirmed the money was present a day or two prior and missing after the incident.

    Procedural History

    The Schuyler County Court convicted Blim of burglary in the third degree. Blim appealed, arguing that the trial court erred by not instructing the jury on the lesser included offense of criminal trespass in the third degree. The Appellate Division reversed the conviction. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in refusing to charge criminal trespass in the third degree as a lesser included offense of burglary in the third degree.

    Holding

    No, because under no reasonable view of the evidence could the jury have found that the defendant committed the lesser offense but not the greater offense.

    Court’s Reasoning

    The Court of Appeals reasoned that criminal trespass in the third degree is a lesser included offense of burglary in the third degree because burglary requires all the elements of criminal trespass, plus an intent to commit a crime inside the premises. However, a lesser included offense instruction is only required if there is a “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” (citing People v. Scarborough, 49 N.Y.2d 364, 369-370). The court found no such rational basis here. The testimony of Lewis, the accomplice, established both the unlawful entry and the intent to commit a crime. Discrediting Lewis’s testimony due to his plea bargain would impact his entire testimony, not just the element of intent. The Court stated, “There is no rational basis for rejecting his testimony concerning their intent to commit a crime in the lodge while accepting his testimony with respect to their unlawful entry into the lodge.” Sergeant Avery’s testimony only established Blim’s presence near the lodge, not that he unlawfully entered or remained inside. Thus, the prosecution’s case established either burglary or nothing, making the lesser included offense instruction unnecessary.

  • People v. Ford, 57 N.Y.2d 262 (1982): Waiver of Objection to Improper Lesser Included Offense

    People v. Ford, 57 N.Y.2d 262 (1982)

    A defendant waives the right to object to a trial court’s error in considering or submitting a lesser crime that is not a lesser included offense if the defendant fails to make a timely objection.

    Summary

    The New York Court of Appeals held that a defendant waives the right to object to the trial court’s consideration or submission of a lesser crime that is not a lesser included offense of the indicted crime if the defendant does not make a timely objection. The Court reasoned that the constitutional right to be tried only upon indictment is not a limitation on the courts, but on the State, and that failing to object to an improper lesser included offense submission is a waivable defect, not a jurisdictional one. Therefore, convictions for crimes that are technically not lesser included offenses can stand if the defendant did not object at trial.

    Facts

    Raymond Ford was indicted for robbery. The trial court indicated it would consider grand larceny as a lesser included offense. Ford did not object and was convicted of grand larceny. Gordon Simpson was indicted for manslaughter. The prosecution requested the court to consider assault as a lesser included offense, and Simpson did not object. He was convicted of assault. James Williams was indicted for robbery. He requested the court submit assault and grand larceny as lesser included offenses to the jury, which it did. He was convicted of assault. In each case, the offense of which the defendant was convicted was conceded to be neither the crime for which he was indicted nor a proper lesser included offense under People v. Glover.

    Procedural History

    In Ford’s case, the Appellate Division reversed the conviction and dismissed the indictment, holding that grand larceny was not a lesser included offense and the defect was a non-waivable jurisdictional error. In Simpson’s case, the Appellate Division affirmed the conviction. In Williams’ case, the Appellate Division affirmed the conviction. The Court of Appeals consolidated the appeals to address the common issue of waiver.

    Issue(s)

    Whether a defendant, by failing to object to the trial court’s consideration or submission of a crime that is not a lesser included offense of the indicted crime, waives the right to challenge the conviction on that basis.

    Holding

    Yes, because an error by the trial court in submitting or considering a lesser crime arising out of the same transaction that is not a lesser included offense does not affect the court’s competence to entertain the action; it affects only its authority to enter a judgment on the merits against the defendant on that specific charge, and such an error can be waived.

    Court’s Reasoning

    The Court of Appeals reasoned that while the New York Constitution requires indictment by a grand jury for infamous crimes, this is a limitation on the State, not a jurisdictional bar to the courts if the defendant fails to object. The court had both personal and subject matter jurisdiction over the offenses due to the initial valid indictment. CPL 300.50(1) provides that any error in submitting a lesser included offense is waived if no timely objection is made. The court emphasized that “a valid and sufficient accusatory instrument is a non waivable jurisdictional prerequisite to a criminal prosecution” (People v Harper, 37 NY2d 96, 99), and “[u]ntil the grand jury shall act, no court can acquire jurisdiction to try” (People ex rel. Battista v Christian, 249 NY 314, 319), but that in each case before them, a valid indictment was returned. The court distinguished cases where no indictment was returned, or where the indictment was inherently defective. The court stated that the constitutional function is to ensure that “before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty” (People v Iannone, 45 NY2d 589, 594). Because the Grand Jury had acted by issuing an indictment, the court reasoned that the purpose of the constitutional provision had been satisfied. Therefore, the failure to object constituted a waiver. Chief Judge Cooke wrote a concurring opinion noting that this decision effectively overruled People ex rel. Gray v. Tekben, 57 NY2d 651.