New York Law Review

Tag: Lesser Included Offense

  • People v. Gonzales, 61 N.Y.2d 633 (1983): Double Jeopardy and Lesser Included Offenses

    People v. Gonzales, 61 N.Y.2d 633 (1983)

    When a defendant is acquitted of a greater offense, double jeopardy bars further prosecution on that charge, and a new trial cannot be ordered on a lesser included offense if the indictment related to the greater offense must be dismissed.

    Summary

    The People appealed an Appellate Division order that reversed the defendant’s manslaughter conviction and dismissed the indictment except for a weapons possession count, with leave to re-present appropriate charges to another Grand Jury. The Court of Appeals affirmed, holding that because the defendant was acquitted of second-degree murder, double jeopardy barred further prosecution on that charge. Further, the Appellate Division could not order a new trial on the lesser included offense of first-degree manslaughter because the indictment had to be dismissed concerning the murder charge, leaving nothing to support further prosecution for manslaughter under that indictment.

    Facts

    The defendant was indicted for second-degree murder, second-degree assault, and second-degree criminal possession of a weapon. The first trial ended in a mistrial due to a deadlocked jury. At the second trial, the jury considered manslaughter in the first degree as a lesser included offense of second-degree murder. The defendant was acquitted of second-degree murder and assault but convicted of first-degree manslaughter and second-degree criminal possession of a weapon.

    Procedural History

    The Appellate Division initially reversed the conviction due to prejudicial trial error and ordered a new trial. On reargument, the Appellate Division modified its prior order to direct a new trial only on the criminal possession of a weapon count and otherwise dismissed the indictment without prejudice to the People re-presenting any appropriate charges to another Grand Jury. The People then appealed to the Court of Appeals, arguing that the Appellate Division’s corrective action was illegal under CPL 470.20 (subd 1).

    Issue(s)

    Whether the Appellate Division erred in dismissing the indictment for manslaughter after the defendant was acquitted of murder, where manslaughter was a lesser included offense of the murder charge.

    Holding

    Yes, because the defendant was acquitted of second-degree murder, further prosecution on that charge was barred by double jeopardy. Further, the Appellate Division could not order a new trial on the lesser included offense of first-degree manslaughter because the indictment had to be dismissed as to the murder charge, and there was thus nothing remaining to support further criminal prosecution for manslaughter under that accusatory instrument.

    Court’s Reasoning

    The Court of Appeals reasoned that the Appellate Division acted correctly in dismissing the manslaughter charge. The court relied on the principle that double jeopardy bars further prosecution on a charge of which the defendant has been acquitted. Since the defendant was acquitted of second-degree murder, further prosecution on that charge was prohibited. The court further explained that because the indictment was dismissed as to the murder charge, no basis remained for a new trial on the lesser included offense of first-degree manslaughter under that same indictment. The court cited People v. Mayo, 48 N.Y.2d 245, 253, and its progeny (People v. Villani, 59 N.Y.2d 781; People v. Beslanovics, 57 N.Y.2d 726) to support this conclusion. The practical effect is that the prosecution cannot retry the defendant for manslaughter under the original indictment. The prosecution does, however, have the option to present the case to another Grand Jury to seek a new indictment on appropriate charges, excluding second-degree murder.

  • People v. Blim, 63 N.Y.2d 718 (1984): Jury Instructions on Lesser Included Offenses When Evidence Supports It

    People v. Blim, 63 N.Y.2d 718 (1984)

    A court must instruct the jury on a lesser included offense if a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but not the greater offense.

    Summary

    The defendant was convicted of burglary. At trial, the court denied the defense’s request to charge the jury on the lesser-included offense of criminal trespass. The Appellate Division reversed, ordering a new trial. The Court of Appeals affirmed, holding that the jury should have been instructed on the lesser-included offense because, based on the defendant’s intoxication, a reasonable jury could have concluded that he committed trespass but lacked the specific intent required for burglary. The court emphasized that the evidence must be viewed in the light most favorable to the defendant when determining whether to give a lesser included offense instruction.

    Facts

    Shortly after midnight on December 18, 1979, police arrested the defendant as he fled from an auto supply store. He was charged with third-degree burglary. The defendant testified that he had been drinking heavily in the 12 hours leading up to his arrest and did not remember being at the store. Other witnesses corroborated the defendant’s intoxicated state on the evening of his arrest and immediately thereafter.

    Procedural History

    The trial court denied the defense’s request to instruct the jury on the lesser-included offense of third-degree criminal trespass. The jury convicted the defendant of burglary. The Appellate Division reversed the conviction and ordered a new trial, stating the reversal was based on the law, even though the order mentioned the facts. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether the trial court erred in refusing to instruct the jury on the lesser-included offense of criminal trespass in the third degree, given the evidence presented at trial regarding the defendant’s intoxication.

    Holding

    Yes, because a reasonable jury could have concluded that the defendant committed the act of trespass but, due to intoxication, lacked the specific intent required for a burglary conviction.

    Court’s Reasoning

    The Court of Appeals held that trespass in the third degree is a lesser-included offense of burglary in the third degree, citing People v. Henderson, 41 N.Y.2d 233, 235. The court stated the rule: “the trespass count should have been charged if, under any reasonable view of the evidence, a jury could find that defendant committed the lesser offense but not the greater (see CPL 300.50, subds 1, 2; see, also, People v. Scarborough, 49 NY2d 364; People v. Johnson, 45 NY2d 546).” The court emphasized that when determining whether a reasonable view of the evidence exists, it must be viewed in the light most favorable to the defendant, citing People v. Shuman, 37 N.Y.2d 302. The Court reasoned that the jury could have found that the defendant knowingly entered or remained unlawfully in the building (committing trespass) but also concluded that he was too intoxicated to form the specific intent to commit a crime within the building, which is a prerequisite for burglary. Therefore, it was error to refuse the lesser-included offense instruction. The court implied that the Appellate Division correctly identified the error of law, despite also alluding to facts in their decision, and affirmed their decision to order a new trial.

  • People v. Carter, 53 N.Y.2d 695 (1981): Establishing Assault in the Third Degree

    People v. Carter, 53 N.Y.2d 695 (1981)

    A conviction for assault in the third degree requires proof of physical injury, which can be established through the victim’s testimony and corroborating medical evidence, and a defendant is not entitled to a lesser included offense charge unless there is a reasonable view of the evidence to support it.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for assault in the third degree. The charges stemmed from an altercation in a shopping center parking lot between the defendant, a young dental surgeon, and the complainant, an elderly man. The court found that the complainant’s testimony, supported by medical evidence, sufficiently established physical injury. The court also upheld the trial court’s refusal to charge harassment as a lesser included offense, as the defendant’s version of events did not reasonably support a finding of harassment instead of assault.

    Facts

    The incident occurred in a Manhasset shopping center parking area. The complainant, an 82-year-old man, advised the defendant, a 28-year-old dental surgeon, that he was parked in a restricted zone. According to the complainant, the defendant then approached him while he was sitting in his car, smashed the car door against his foot as he tried to exit, struck him in the ribs after he got out of the car, and knocked him to the ground. The complainant testified to sustaining a concussion, lacerations, severe bruises, and a severely bruised and swollen foot. Two physicians testified, confirming the complainant’s injuries and pain, which persisted for three to five weeks. The defendant presented a substantially different version of the incident.

    Procedural History

    The defendant was convicted of assault in the third degree after a jury trial. He appealed to the Appellate Term, which affirmed the conviction. He then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the evidence presented at trial was sufficient to support a conviction for assault in the third degree.

    2. Whether the trial court erred in refusing to charge harassment as a lesser included offense.

    Holding

    1. Yes, because the complainant’s testimony and corroborating medical evidence established the element of physical injury required for assault in the third degree.

    2. No, because the defendant’s version of the incident did not provide a reasonable basis for the jury to find harassment instead of assault.

    Court’s Reasoning

    The Court of Appeals found that the jury was presented with sufficient evidence to conclude that the defendant committed assault in the third degree. The court relied on the complainant’s detailed testimony of the incident and the corroborating testimony of the two physicians who treated him. This evidence established that the complainant suffered physical injury as a result of the defendant’s actions, satisfying the requirements of Penal Law § 120.00(1). Regarding the lesser included offense, the court cited People v. Glover, 57 NY2d 61, and People v. Moyer, 27 NY2d 252, emphasizing that a defendant is only entitled to a charge 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. Here, the defendant’s version of events, while potentially supporting a factual finding of harassment, did not preclude a finding of assault. Therefore, the trial court did not err in refusing to charge harassment as a lesser included offense. The court implicitly emphasized the jury’s role in assessing witness credibility and resolving conflicting factual accounts.

  • People v. Glover, 57 N.Y.2d 61 (1982): Establishing Lesser Included Offenses in New York

    People v. Glover, 57 N.Y.2d 61 (1982)

    A defendant is entitled to a lesser included offense charge only if (1) it is theoretically impossible to commit the greater crime without also committing the lesser crime, and (2) a reasonable view of the evidence supports a finding that the defendant committed the lesser offense but not the greater.

    Summary

    The New York Court of Appeals clarified the two-pronged test for determining when a defendant is entitled to a jury instruction on a lesser included offense. The Court emphasized that the first prong requires a theoretical, abstract comparison of the statutory definitions of the crimes, not an examination of the specific facts of the case. The second prong requires that there be a reasonable view of the evidence in the particular case that would support a finding that the defendant committed the lesser offense but not the greater. In this case, the court found that it is theoretically possible to sell drugs without the intent to aid another person in committing a Class A felony. Therefore, the defendant was not entitled to a charge of criminal facilitation as a lesser included offense of criminal sale of a controlled substance.

    Facts

    The defendant was charged with criminal sale of a controlled substance in the second degree. At trial, the defendant requested that the court also charge the jury on criminal facilitation in the second degree as a lesser included offense.

    Procedural History

    The trial court denied the defendant’s request to charge the jury on criminal facilitation. The Appellate Division affirmed the conviction. The Court of Appeals granted leave to appeal to consider whether the trial court erred in refusing to charge the jury on the lesser included offense.

    Issue(s)

    Whether the trial court erred in denying the defendant’s request to charge the jury on criminal facilitation in the second degree as a lesser included offense of criminal sale of a controlled substance in the second degree.

    Holding

    No, because it is theoretically possible to commit the greater crime of criminal sale of a controlled substance without also committing the lesser crime of criminal facilitation.

    Court’s Reasoning

    The Court of Appeals articulated a two-pronged test for determining when a defendant is entitled to a lesser included offense charge. The first prong, derived from CPL 1.20(37), requires that it be “impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.” This is determined by comparing the statutes in the abstract, without reference to the specific facts of the case. The second prong, prescribed by CPL 300.50(1), requires “an assessment of the evidence of the particular criminal transaction in the individual case and a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater.”

    The Court found that the defendant failed to satisfy the first prong. The Court reasoned that “it would be theoretically possible for a defendant illegally to sell a drug without intending to aid anyone else in the commission of a class A felony (as, for instance, when the criminal transaction involved only the defendant and an undercover police buyer).” Because the defendant could not satisfy the first prong of the test, the Court held that the trial court did not err in refusing to charge the jury on criminal facilitation.

    The Court explicitly overruled prior cases like People v. Johnson, People v. Cionek, and People v. Hayes, “to the extent that our decisions…may be read as at variance with this application, they are no longer to be followed.” These cases had resolved the first inquiry by examining only the criminal transaction on which the particular prosecution was predicated.

  • People v. Smith, 55 N.Y.2d 890 (1981): Defendant Entitled to Lesser Included Offense Instruction

    People v. Smith, 55 N.Y.2d 890 (1981)

    A defendant is entitled to a jury instruction on 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 offense.

    Summary

    Defendant was convicted of robbery in the first degree. The Court of Appeals reversed the conviction and ordered a new trial, holding that the trial court erred in refusing the defendant’s request to charge the jury on the lesser included offense of robbery in the second degree. The defendant’s confession, admitted into evidence, stated that the weapon used was a toy gun. The court reasoned that this evidence provided a reasonable basis for the jury to conclude that the firearm was not a loaded weapon capable of producing death or serious physical injury, which is a requirement for first-degree robbery. Therefore, the defendant was entitled to the lesser offense instruction.

    Facts

    The defendant was charged with robbery in the first degree. During the trial, the prosecution introduced the defendant’s confession as part of its direct case. The confession included a statement indicating that the weapon the defendant used during the robbery was a toy gun.

    Procedural History

    The trial court refused the defendant’s request to instruct the jury on the lesser included offense of robbery in the second degree. The jury convicted the defendant of robbery in the first degree. The Appellate Division affirmed the conviction. The Court of Appeals reversed the Appellate Division’s order and ordered a new trial.

    Issue(s)

    Whether the trial court erred in refusing the defendant’s request to charge the jury on the lesser included offense of robbery in the second degree, given the defendant’s confession stating that the weapon used was a toy gun?

    Holding

    Yes, because the defendant’s confession provided a reasonable basis for the jury to conclude that the firearm displayed by the defendant was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.

    Court’s Reasoning

    The Court of Appeals held that the trial court erred in refusing the defendant’s request to charge the jury on robbery in the second degree. The court reasoned that the defendant’s confession, which stated that the weapon used was a toy gun, provided a reasonable basis for the jury to conclude that the firearm displayed by the defendant was not a loaded weapon capable of producing death or serious physical injury. The court cited Penal Law § 160.15, subd 4, which defines robbery in the first degree as involving the use of a deadly weapon or what appears to be a deadly weapon. The court also cited CPL 300.50, subds 1, 2, which require the court to submit a lesser included offense to the jury 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. The court stated, “[T]he weapon defendant was carrying during the robbery was a toy gun. This statement provided a reasonable basis in the evidence for the jury to conclude that the firearm displayed by defendant ‘was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.’” The Court explicitly noted that the charge concerning accomplice liability did not cure the error of refusing to charge the lesser included offense. The court concluded that the defendant was entitled to a charge on the lesser offense of robbery in the second degree. The court also addressed the defendant’s argument that his statements should have been suppressed as the result of an arrest effected in his home without a warrant and in the absence of exigent circumstances. However, the court found that the defendant had failed to preserve that issue for appellate review because he did not raise it before the suppression court, citing People v Gonzalez, 55 NY2d 887.

  • People v. Green, 56 N.Y.2d 427 (1982): Defining ‘Lesser Included Offense’ in New York Criminal Law

    People v. Green, 56 N.Y.2d 427 (1982)

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

    Summary

    The New York Court of Appeals reversed the Appellate Division’s order and dismissed the indictment against the defendant, who was convicted of reckless endangerment in the first degree after the trial court reduced an attempted murder charge. The Court of Appeals held that reckless endangerment is not a lesser included offense of attempted murder. The court reasoned that it is theoretically possible to attempt murder without creating a grave risk of death, a necessary element of reckless endangerment. This decision reinforces a strict interpretation of the “lesser included offense” definition in New York criminal law, requiring impossibility of committing the greater crime without also committing the lesser.

    Facts

    The defendant was charged with multiple offenses, including two counts of attempted murder in the second degree, one count of assault in the first degree, and three counts of criminal possession of a weapon.

    At the close of the prosecution’s case, the trial judge found insufficient evidence to prove intent to kill for one of the attempted murder charges.

    The judge reduced this charge to reckless endangerment in the first degree and dismissed the remaining counts of the indictment.

    Procedural History

    The defendant was convicted of reckless endangerment in the first degree.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals granted review.

    Issue(s)

    Whether reckless endangerment in the first degree is a lesser included offense of attempted murder in the second degree under New York Criminal Procedure Law (CPL 1.20, subd. 37).

    Holding

    No, because it is theoretically possible to commit attempted murder in the second degree without also committing reckless endangerment in the first degree.

    Court’s Reasoning

    The Court of Appeals focused on the statutory definition of “lesser included offense” as defined in CPL 1.20 (subd 37): “When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a lesser included offense.”

    The Court emphasized a strict interpretation of this definition, stating, “one crime cannot be a lesser included offense of another if it is theoretically possible to commit the greater crime without concomitantly committing the lesser.”

    The Court applied this interpretation to the case, noting that attempted murder requires intent to kill, while reckless endangerment requires creating a grave risk of death. The court reasoned that an attempted murder could be rendered “innocuous by some circumstance of factual impossibility,” meaning that no grave risk of death would be created. Therefore, a person could commit attempted murder without committing reckless endangerment.

    The court cited People v. Miguel, 53 N.Y.2d 920, to further support its holding, reinforcing the principle that the theoretical possibility of committing the greater crime without the lesser precludes the lesser crime from being a lesser included offense.

    The Court concluded that since reckless endangerment in the first degree (Penal Law, § 120.25) is not a lesser included offense of attempted murder in the second degree (Penal Law, §§ 110.00, 125.25, subd 1), the defendant’s conviction for the former could not stand after the attempted murder charge was reduced.

  • People v. Glover, 57 N.Y.2d 61 (1982): Defining ‘Lesser Included Offense’ and Preservation of Fourth Amendment Claims

    People v. Glover, 57 N.Y.2d 61 (1982)

    A crime is a ‘lesser included offense’ only if it is impossible to commit the greater offense without also committing the lesser offense; furthermore, failure to raise a specific legal argument at trial, such as a Fourth Amendment violation, forfeits the right to raise it on appeal.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the defendant’s statements and eyewitness identification were properly admitted. The Court also found that the trial court did not err in refusing to submit a charge of assault in the third degree to the jury. The Court reasoned that assault in the third degree is not a lesser included offense of robbery in the second degree or felony assault because one can commit the latter offenses without necessarily committing the former. Additionally, the Court emphasized that the defendant’s failure to object to the admission of evidence based on Fourth Amendment grounds at the suppression hearing precluded appellate review of that issue.

    Facts

    The defendant was charged with robbery in the second degree and felony assault. Prior to trial, the defendant sought to suppress statements he made to the police and an eyewitness identification, arguing a violation of his right to counsel and the unreliability of the identification. The defendant did not argue that his detention or the evidence obtained violated his Fourth Amendment rights. At trial, the defendant requested that the court instruct the jury on assault in the third degree as a lesser included offense.

    Procedural History

    The trial court rejected the defendant’s suppression arguments and refused to submit the charge of assault in the third degree to the jury. The Appellate Division affirmed. The case then went to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s failure to object to the admission of evidence on Fourth Amendment grounds at the suppression hearing precluded appellate review of that issue.

    2. Whether assault in the third degree is a lesser included offense of robbery in the second degree or felony assault, such that the trial court was required to submit that charge to the jury.

    Holding

    1. Yes, because the defendant failed to object to the admission of the evidence on the ground that it was obtained in violation of his rights under the Fourth Amendment, the issue is beyond the Court’s power to review.

    2. No, because it is possible to commit robbery in the second degree and felony assault without concomitantly committing assault in the third degree.

    Court’s Reasoning

    Regarding the Fourth Amendment claim, the Court relied on the principle that issues not raised at the trial level are generally not preserved for appellate review. Citing People v. Martin, 50 N.Y.2d 1029, the Court emphasized the importance of timely objections to allow the trial court to address the alleged error.

    On the lesser included offense issue, the Court applied CPL 300.50 subds 1, 2, which requires the defendant to show both that the offense is a lesser included offense and that a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but not the greater. The Court focused on the first prong, relying on CPL 1.20 (subd 37), which defines a lesser included offense as one where “it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree.”

    The Court reasoned that robbery in the second degree (Penal Law, § 160.10, subds 1, 2, par [a]) and felony assault (Penal Law, § 120.05, subd 6) can be committed without the specific intent or recklessness required for assault in the third degree (Penal Law, § 120.00). Specifically, robbery only requires forcible stealing, and felony assault requires causing physical injury during the commission of a felony, but neither inherently requires the specific intent or recklessness that defines assault in the third degree. Thus, the statutory elements of the greater offenses do not necessarily include the elements of the purported lesser offense.

    The Court acknowledged its prior holdings in People v. Lett, 39 N.Y.2d 966 and People v. Warren, 43 N.Y.2d 852, where assault in the third degree was considered a lesser included offense of robbery in the second degree. However, the Court explicitly stated that those cases were wrongly decided because they did not adequately consider whether it was impossible to commit the robbery without also committing the assault.

  • People v. Holmes, 52 N.Y.2d 976 (1981): Appellate Court Discretion to Order New Trial After Dismissing a Count

    52 N.Y.2d 976 (1981)

    An intermediate appellate court has discretion under CPL 470.15(2)(a) to order a new trial on remaining counts after dismissing a count for insufficient evidence, even if evidence supports a conviction for a lesser included offense of the dismissed count; a reduction to a lesser included offense is not mandatory.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order for a new trial. The Appellate Division had dismissed one count of the indictment against Holmes for insufficient evidence but ordered a new trial on the remaining counts, which the trial court instructed the jury not to consider if they found Holmes guilty on the first count. The Court of Appeals held that CPL 470.15(2)(a) gives the Appellate Division discretion to order a new trial, and reducing the conviction to a lesser included offense is not mandated by the statute. The dissent argued that the Appellate Division should have reduced the conviction to a lesser included offense.

    Facts

    Anthony Holmes was indicted and tried on multiple counts. The jury found him guilty on the first count. The trial court had instructed the jury not to consider the remaining counts if they found the defendant guilty under the first count. The Appellate Division dismissed the first count for insufficient evidence.

    Procedural History

    The trial court convicted Holmes. The Appellate Division dismissed the first count of the indictment and ordered a new trial on the remaining counts. The People appealed to the New York Court of Appeals, arguing that the Appellate Division should have reduced the conviction to a lesser included offense rather than ordering a new trial. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Appellate Division, upon dismissing a count of an indictment for insufficiency of evidence, is required to reduce the conviction to a lesser included offense if the evidence is sufficient to support such a conviction, or whether it has discretion to order a new trial on the remaining counts.

    Holding

    No, because CPL 470.15(2)(a) grants the Appellate Division discretion in such a situation; it “may modify the judgment by changing it to one of conviction for the lesser offense,” but is not required to do so.

    Court’s Reasoning

    The Court of Appeals focused on the permissive language of CPL 470.15(2)(a), which states the intermediate appellate court “may modify the judgment by changing it to one of conviction for the lesser offense.” The court emphasized the word “may,” concluding that the statute does not mandate a reduction to a lesser included offense. The court distinguished this case from People v. Dlugash, 41 N.Y.2d 725, noting that Dlugash involved the dismissal of a single-count indictment where no retrial was possible, whereas here, a new trial was ordered on remaining counts. The dissent argued that the majority ignored established rules of statutory construction, which dictate that permissive words conferring power upon public officers are generally mandatory when the act authorized concerns the public interest or individual rights. The dissent contended that the Appellate Division erred in ordering a new trial “on the law” and should have reduced the conviction to a lesser included offense. The dissent emphasized that CPL 470.20 requires corrective action to rectify any injustice and protect the rights of the respondent (the People). According to the dissent, ordering a new trial dissolved the jury’s finding of guilt on a lesser charge without articulating any reason for doing so, which was an injustice to the People. The majority countered the dissent’s interpretation of CPL 470.20(4), clarifying that it merely sets forth the steps to be taken concerning the defendant’s sentence after the intermediate appellate court has in fact reduced the conviction to one for a lesser included offense and does not require the reduction itself.

  • People v. Scarborough, 49 N.Y.2d 364 (1980): Jury Instructions on Lesser Included Offenses

    People v. Scarborough, 49 N.Y.2d 364 (1980)

    A lesser included offense should only be submitted to the jury if there is a rational basis for the jury to acquit the defendant of the greater offense while convicting on the lesser offense.

    Summary

    Defendants Scarborough and Codrington were convicted of criminal sale of a controlled substance. At trial, the judge declined to instruct the jury on the lesser included offense of possession of a controlled substance. The New York Court of Appeals affirmed the convictions, holding that a lesser included offense instruction is only required when there is a rational basis for the jury to conclude the defendant committed the lesser offense but not the greater. Because the prosecution’s case rested on the testimony of a single undercover officer and the defendants presented a blanket denial, there was no rational basis to distinguish between the sale and possession, making the instruction unwarranted.

    Facts

    Undercover Officer Hewitt arranged to buy heroin. He entered a storefront where Codrington was present. Hewitt told Codrington he wanted to buy 20 bags of heroin. Codrington called Scarborough inside and directed her to give Hewitt 25 glassine envelopes from a brown paper bag. Scarborough took $200 from Hewitt and gave him the envelopes, which contained heroin. A back-up officer corroborated Hewitt’s testimony and took photographs of the events.

    Procedural History

    Scarborough and Codrington were jointly indicted and tried for criminal sale of a controlled substance, as well as criminal possession. The trial court only submitted the sale charge to the jury, refusing the defense’s request to also submit the lesser possession charges. The Appellate Division affirmed the convictions. The New York Court of Appeals granted review and affirmed.

    Issue(s)

    Whether the trial court erred in refusing to submit counts of possession of a controlled substance as lesser included offenses of the charge of criminal sale of a controlled substance.

    Holding

    No, because no rational basis existed for the jury to reject the undercover officer’s testimony regarding the sale while accepting his testimony regarding possession.

    Court’s Reasoning

    The court stated that CPL 300.50 dictates when a lesser included offense must be submitted to a jury. The key is whether “there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.” The court emphasized that a lesser-included offense instruction is not required in every case. The court cited People v. Mussenden, 308 N.Y. 558 (1955), holding that a lesser crime instruction is only justified where there is some basis in the evidence for finding the accused innocent of the higher crime, yet guilty of the lower one.

    The Court found the general rule to be: “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.” An example of a rational basis would be when the defendant denies only the element of the criminal transaction which is a necessary component of the greater crime and either admits or does not deny the elements of the lesser offense.

    The court distinguished cases where the defendant admitted to acts establishing the lesser crime or where there were inconsistencies in the prosecution’s case. Here, the only evidence came from one witness, Officer Hewitt, and the defendants issued blanket denials. There was no basis for the jury to selectively believe part of Hewitt’s testimony (possession) while disbelieving another part (sale). The court held that allowing the jury to choose would be “to countenance its arbitrary sorting of the testimony of a single witness.” As such, the instruction on the lesser included offense was not warranted.

    The court rejected the argument that the jury has the right to engage in a wholly arbitrary, even irrational, selection from the proof.

  • People v. Mayo, 48 N.Y.2d 245 (1979): Double Jeopardy and Retrial After Insufficient Evidence

    People v. Mayo, 48 N.Y.2d 245 (1979)

    When a trial court dismisses a charge due to insufficient evidence, it is equivalent to an acquittal, and retrying the defendant on that charge, even if the jury only considers lesser included offenses, violates the double jeopardy clause.

    Summary

    Mayo was initially tried for first-degree robbery. The trial court found insufficient evidence for the first-degree charge but allowed the jury to consider lesser charges of second and third-degree robbery, resulting in a mistrial. The prosecution retried Mayo on the original indictment, including the first-degree charge, but the judge instructed the jury to only consider the lesser charges. Mayo was convicted of second-degree robbery. The New York Court of Appeals reversed, holding that retrying Mayo on the original indictment violated double jeopardy, even though he was only convicted of a lesser charge, because the initial dismissal for insufficient evidence acted as an acquittal on the first-degree charge. The court rejected a “harmless error” analysis, emphasizing the anxiety and stigma of a second trial.

    Facts

    1. Mayo was indicted on a single count of first-degree robbery.
    2. At the first trial, the court found insufficient evidence to support the first-degree robbery charge (specifically, the use or threatened use of a dangerous weapon).
    3. The judge instructed the jury to consider only the lesser included offenses of second and third-degree robbery.
    4. The jury was unable to reach a verdict, and a mistrial was declared.
    5. The prosecution retried Mayo on the original first-degree robbery indictment.
    6. At the second trial, the judge instructed the jury not to consider the first-degree robbery charge, but only the lesser included offenses.
    7. Mayo was convicted of second-degree robbery.

    Procedural History

    1. The trial court dismissed the first-degree robbery charge for insufficient evidence but declared a mistrial on the lesser charges.
    2. The trial court denied Mayo’s motion to dismiss the indictment before the second trial, allowing the retrial on the original indictment.
    3. The Appellate Division upheld the conviction, applying a harmless error analysis, finding that the jury did not consider the first-degree robbery charge.
    4. The New York Court of Appeals reversed the Appellate Division’s decision and dismissed the indictment.

    Issue(s)

    1. Whether retrying a defendant on an indictment that includes a charge previously dismissed for insufficient evidence violates the double jeopardy clause, even if the jury is instructed to only consider lesser included offenses.
    2. Whether a violation of the double jeopardy clause can be considered harmless error when the defendant is convicted of a lesser included offense in the second trial.

    Holding

    1. Yes, because the initial dismissal of the first-degree robbery charge for insufficient evidence was equivalent to an acquittal, and retrying Mayo on the original indictment subjected him to double jeopardy.
    2. No, because the double jeopardy clause protects against the risk and anxiety of a second trial, regardless of the ultimate verdict; the error is too fundamental for harmless error analysis.

    Court’s Reasoning

    The Court of Appeals reasoned that the trial court’s initial decision to withdraw the first-degree robbery count from the jury’s consideration due to insufficient evidence was functionally equivalent to an acquittal on that charge. Quoting Price v. Georgia, 398 U.S. 323, 331 (1970), the court emphasized that “[t]he Double Jeopardy Clause…is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict.” Bringing Mayo to trial a second time on the original indictment, which included the charge he had effectively been acquitted of, violated his constitutional right not to be twice placed in jeopardy.
    The court rejected the harmless error analysis, explaining that certain constitutional errors are so fundamental that they invalidate the entire trial process. A violation of the double jeopardy clause falls into this category because it implicates the very power of the court to conduct the trial. The court found it difficult to ascertain if the first-degree charge affected the jury’s view of the evidence or the defense’s trial strategy. The court stated, “When a defendant is brought to trial in violation of his rights under the double jeopardy clause of the Fifth Amendment, the very power of the court to try him is implicated”. Because Mayo objected to being retried for first-degree robbery, the criminal proceeding was a nullity, requiring reversal of the second-degree robbery conviction and dismissal of the original indictment.