Friday, May 11, 2012

Counsel's Options When Proof Is Insufficient To Prove Charged Offense, But Sufficient To Prove Lesser Included Offense

Jill Paperno, Special Assistant Monroe County Public Defender

When you make a TOD motion, if the proof is sufficient to sustain a lesser included charge, the court may not grant the TOD.  (CPL 290.10 ["the court may, except as provided...upon motion of the defendant, (a) issue a 'trial order of dismissal,' dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense..."])

What happens when the proof is clearly inadequate to support the top count, but you can't get a TOD because there is a view of the proof that supports the lower count?   You should ask the court to not submit the top count to the jury, but only the lesser.  CPL 300.40(1) states, "When the court 'submits a count' it must, at the least, submit the offense charged therein if such is supported by legally sufficient trial evidence(emphasis added), or if it is not, the greatest lesser included offense which is supported by legally sufficient trial evidence (emphasis added)."

There are two perspectives on whether you should make a TOD motion if the only argument is that the proof is insufficient to support the top count, but not a lesser.  On the one hand, there is the "better safe than sorry" view (which is my perspective, so I still make the motion).  That view will help alert the court and perhaps future appellate counsel to the issue, and perhaps confirm what you raised in earlier motions, hearings and argument.  The alternative view is that it may be a frivolous motion since the law does not support dismissal on such a TOD.  For a lengthier discussion of this issue, see
. My view - you should continue to make your TOD motions challenging the sufficiency of the prosecution's proof, even if it only gets you to a lesser, but also request the court not read the top count(s) not supported by the proof.

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