People v. Boettcher

• Decision Date: 17 February 1987
• Citation: 69 N.Y.2d 174,505 N.E.2d 594,513 N.Y.S.2d 83
• Parties: , 505 N.E.2d 594 The PEOPLE of the State of New York, Respondent, v. Ludwig BOETTCHER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 83

513 N.Y.S.2d 83

69 N.Y.2d 174, 505 N.E.2d 594

The PEOPLE of the State of New York, Respondent, v. Ludwig BOETTCHER, Appellant.

Court of Appeals of New York.

Feb. 17, 1987.

Vincent A. Malito, Hauppauge, for appellant.

Patrick Henry, Dist. Atty. (Patricia A. Harrington and Daniel J. Murphy, Riverhead, of counsel), for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The issue presented on this appeal is the nature of the transition instruction, which guides the jury in its consideration of lesser included offenses, to which a defendant is entitled upon request.

At the defendant's trial on an indictment charging him with operating a motor vehicle while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(3) and (5), the People demonstrated that a police officer assigned to a special "Stop DWI" program saw the defendant driving a vehicle leaving a "park and ride" area adjacent to an exit of the Long Island Expressway shortly after 5:00 A.M. on a Saturday morning. The officer saw the car make a wide right turn into the left traffic lane of the service road, and later cross the center dividing line. Upon reaching a stop sign, the car halted for 30 seconds, though there was no other traffic in the vicinity. After making a right turn at the stop sign and then proceeding, the defendant's car again crossed the center line twice.

The officer stopped the car. The defendant, in response to a request for his license and registration, produced only a registration. The officer observed that his breath smelled of alcohol, his eyes were bloodshot and watery and his speech slightly slurred. Upon alighting from his vehicle, the defendant was unsteady on his feet and swayed back and forth. The officer concluded that the defendant was intoxicated, placed him under arrest and advised him of his rights regarding the taking of a chemical test to determine blood alcohol level, which the defendant refused.

The defendant was taken to the "Stop DWI" trailer and logged in by the desk sergeant, who also concluded, based on his own observations, that the defendant was intoxicated. The arresting officer readvised the defendant of his rights regarding the chemical test, and the defendant again refused.

The defendant presented evidence that his only consumption of alcohol that morning was two drinks between 1 and 2 o'clock, which evidence, it is not disputed, entitled him to an instruction on the lesser included offense of operating a motor vehicle while his ability was impaired by the consumption of alcohol (Vehicle and Traffic Law § 1192[1] ). Defense counsel requested an instruction that the jury could consider the lesser included offense not only if it found the defendant not guilty of the greater, but also if it could "not reach" or was "unable" to reach a verdict on the greater offense. The court denied the request, defense counsel excepted, and the court delivered the following charge:

"Now, under our law most crimes are possible of being separated into lesser included offenses, and under certain circumstances one charged with a certain crime may be convicted of the crime as charged or of a lesser included offense of the crime as charged. Consequently, you will consider the guilt or innocence of the defendant as to the charge of Driving While Impaired, but only if you have first found him to be not guilty of Driving While Intoxicated in accordance with the instructions I have given you.

"If you find that the People have established the guilt of the defendant as to Driving While Intoxicated beyond a reasonable doubt, it is your duty to find the defendant guilty of that crime without considering Driving While Impaired. You would not be justified in finding the defendant guilty of the lesser offense just because you felt that you would rather see some other disposition in the case or because you may dislike to do a disagreeable thing or because of any other reason. There is only one thing that justifies a verdict for a lesser offense, and that is that such lesser offense is established beyond a reasonable doubt and the higher offense is not so established.

"Consequently, you will consider Driving While Impaired only if you find the defendant not guilty of Driving While Intoxicated.

* * *

"Your verdict must be unanimous. The same requirement of unanimity is required for you to acquit the defendant as well as to convict him. You must all degree [sic ] together to reach either verdict."

At the conclusion of the charge, defense counsel excepted "to the instruction including the lesser included offense", but the court declined to amend its instructions. The jury found the defendant guilty of the greater offense of operating a motor vehicle while under the influence of alcohol as a felony, and the court imposed sentence. The defendant appealed to the Appellate Division, claiming the trial court's instructions to the jury in conjunction with its submission of the lesser included offense was erroneous. ¹ That court rejected his contention and affirmed the judgment, and the defendant again appeals pursuant to leave granted by a Judge of this court.

Initially, we reject the People's contention that we should not reach the alleged error in the instruction regarding the jury's consideration of the lesser included offense because the jury found the defendant guilty of the greater, and thus had no occasion to consider the lesser, offense. Although, as we have noted, a "court should avoid doing anything * * * that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict" (People v. Mussenden, 308 N.Y. 558, 563, 127 N.E.2d 551), we have recognized, as a practical matter, that the availability of a lesser included offense may affect a jury's deliberations. Thus, where a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, we have noted that the defendant's conviction of the crime alleged in the indictment forecloses a challenge to the court's refusal to charge the remote lesser included offenses. For example, in People v. Richette, 33 N.Y.2d 42, 45-46, 349 N.Y.S.2d 65, 303 N.E.2d 857, where the indictment charged grand larceny in the second degree, of which the defendant was ultimately convicted, and the court charged grand larceny in the third degree as a lesser included offense, but denied a defense request to charge petit larceny as a further lesser included offense, we noted: "Had the jury found the defendant guilty of grand larceny in its third degree, there might be some basis for his claim that he was prejudiced by the court's refusal to charge petit larceny: it could be asserted that, had the instruction been given, the jury might have returned a verdict of guilt of petit larceny, the still lower degree of larceny. However--to paraphrase what this court wrote in People v. Brown, 203 N.Y. 44, 51-52, 93 N.E. 367--such speculations are dispelled by the fact that the defendant was actually found guilty of second degree larceny; when the jury excluded from the case the alternative of grand larceny in the third degree, 'all lower degrees were necessarily eliminated'. (See, also, People v. Granger, 187 N.Y. 67, 73, 79 N.E. 833; cf. People v. Reisman, 29 N.Y.2d 278, 287-288, 327 N.Y.S.2d 342, 277 N.E.2d 396 [cert. denied 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582].)"

In the present case, by analogy, although the issue is not the court's refusal to submit a lesser included crime for the jury's consideration but the nature in which such crime was presented, it appears that the jury's finding the defendant guilty of the immediately higher crime could have been influenced by the transition instruction of which the defendant now complains, which would not be true had his complaint been about the way in which a more remote degree of crime were presented to the jury.

Having rejected the People's claim, we now turn to the defendant's.

In People v. Willson, 109 N.Y. 345, 357, 16 N.E. 540, this court stated the rule regarding when a jury may consider a lesser included offense: "The defendant was charged in the indictment with murder in the first degree, and to that charge he pleaded, and for that charge he was put on trial, and all the evidence was directed to the issue joined upon that charge. It was the duty of the jury first to determine whether he was guilty of that charge or not. That was the primary subject to be investigated, and it was only after they found him not guilty upon that charge that they were authorized, under section 444 of the [former] Code of Criminal Procedure ² to find him guilty of any inferior degree of homicide."

The present statute, CPL 300.50(4) provides: "Whenever the court submits two or more offenses in the alternative pursuant to this section, it must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted." Unlike its predecessor, CPL 300.50(4) does not directly address the pivotal problem in ...