Friday, June 7, 2019

Lesser Included Offenses

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

Lesser included offenses may come into play at various stages of a case, such as a court's inspection of grand jury minutes and possible reduction of charges, pleas, TODs, the defense theory of the case, and as addressed below, the jury charge at the end of a case. 

There are times that you may wish to request that the jury be charged on a lesser included offense.  This means that if the jury concludes the defendant is not guilty of the top count, they may consider a lesser count.  Although it seems like you'd want to stop with the acquittal on the top count and not get a lesser charge (and sometimes that is a strategic decision to make) we also often recognize a jury may be reluctant to completely acquit, and since they hear the instructions on the lesser before they deliberate they know there's an option other than a complete acquittal in a case where they might not want to see the client walk. 

In CPL 1.20 (the definitions section - a good place to start with many issues) the term "lesser included offense" is defined.  The definition, in subdivision 37, states, "'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 latter is, with respect to the former, a 'lesser included offense.' In any case in which it is legally possible to attempt to commit a crime, an attempt to commit such crime constitutes a lesser included offense with respect thereto."   

(In some cases attempts are not possible - those tend to be strict liability crimes - another discussion for another day.  Not all strict liability crimes fall within this category and you must do case research.) 

CPL 300.50  relates to submission of lesser included offenses to the jury when the case is charged by indictment.  CPL 360.50(2) relates to the submission when the case is charged by information.   

Pursuant to CPL 300.50(1), the court may in its discretion submit the lesser if "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." If the court is authorized to submit a lesser (it meets the reasonable view test) and either party requests the lesser, it must submit it.  "This reasonable view" test was addressed in a blog piece by one of our former colleagues in appeals, Jim Eckert.  I've attached the blog piece below.  There are several other subdivisions in this statute worth a read, including subdivision 6 relating to Rape 3 being a possible lesser given to the jury in Rape 1 cases.   

The Court of Appeals has articulated the lesser test as follows: 

A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37). Here, defendant asked the trial judge to charge second-degree manslaughter, which is a lesser included crime of second-degree intentional murder (see People v Tai, 39 NY2d 894, 352 NE2d 582, 386 NYS2d 395 [1976] [reckless manslaughter is a lesser included offense of intentional murder]). Second, the party making the request for a charge-down "must then show that there is a reasonable view of the evidence in the [**450]  [***452]  particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater" (People v Glover, 57 NY2d 61, 63, 439 NE2d 376, 453 NYS2d 660 [1982]; CPL 300.50 [1]). In assessing whether there is a  "reasonable view of the evidence," the proof must be  looked at "in the light most favorable to [the] defendant" (People v Martin, 59 NY2d 704, 705, 450 NE2d 225, 463 NYS2d 419 [1983]), which requires awareness of "the jury's right to accept some part of the evidence presented  [****15] by either side and reject other parts of that proof" (People v Green, 56 NY2d 427, 434, 437 NE2d 1146, 452 NYS2d 389 [1982]). We have never, however, "countenance[d] selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor" (People v Scarborough, 49 NY2d 364, 373, 402 NE2d 1127, 426 NYS2d 224 [1980]; see also People v Negron, 91 NY2d 788, 792, 699 NE2d 32, 676 NYS2d 520 [1998]).

People v Rivera, 23 N.Y.3d 112, 120-121 

Although it seems like it should be easy to figure out if a lesser meets the test set forth in CPL 1.20 (legally impossible to commit the top count without committing the lesser) and the reasonable view of the evidence test, there are many cases interpreting whether lessers are actually lessers based on the elements of the charge and the specific facts of the case under review.  So when you are prepping for trial, either take a look at the NYSDA lesser included chart, linked below, or do some research, or both. 

 Make sure you consider the mens rea of the greater and potential lesser.  In sex offenses this is a bit more complicated.  For some sex offenses, the definition of the offense includes the phrase "sexual contact," while others contain the phrase "sexual conduct.."  While many Penal Law definitions are found in Article 10 of the Penal Law, some are found in the articles addressing the particular offenses.  "Sexual contact" and "sexual conduct" are defined in the definitions section of Article 130.  Some sex offense crimes contain neither phrase but the definition of the offense sets forth the elements.   

Sexual Abuse in the First Degree involves "sexual contact."  Sexual contact requires the contact be for the "purpose of gratifying sexual desire of either party." (PL 130.00(3).  The definition is more extensive.  But rape, sodomy and course of sexual conduct, for example, do not require that purpose. So it is possible to commit the lesser without committing the greater offense.  And if that can happen, the charge is not a lesser.  For cases addressing this specific issue in sex offenses, see People v. Wheeler  67 NY2d 960 and  People v. Baker 123 AD3d 1378 (Third Dept. 20146).