People v. Boettcher

• Decision Date: 09 June 1986
• Docket Number: No. 974,974
• Citation: 503 N.Y.S.2d 810,118 A.D.2d 65
• Parties: The PEOPLE, etc., Respondent, v. Ludwig BOETTCHER, Appellant. (Ind./85)
• Court: New York Supreme Court — Appellate Division

Page 810

503 N.Y.S.2d 810

118 A.D.2d 65

The PEOPLE, etc., Respondent, v. Ludwig BOETTCHER, Appellant. (Ind. No. 974/85)

Supreme Court, Appellate Division Second Department.

June 9, 1986.

Bracken & Jacoppi, Lindenhurst (Vincent A. Malito of counsel), for appellant.

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

Before LAZER, J.P., and MANGANO, GIBBONS and SPATT, JJ.

MEMORANDUM BY THE COURT.

MANGANO, Judge.

In charging down from a greater to a lesser included offense, should jurors be instructed that they may consider the lesser included offense only if they unanimously find the defendant "not guilty" of the greater offense? Or, should the jury be instructed that they may also consider the lesser included offense when, after a reasonable effort, they are unable to agree on a verdict upon the greater offense?

In our view, the former instruction is the proper method of charging the jury. Since the jury in the instant criminal action was so charged, the defendant's judgment of conviction must be affirmed.

I

The defendant was charged, in Indictment No. 974/85, with having committed the crime of operating a motor vehicle while under the influence of alcohol as a felony, pursuant to Vehicle and Traffic Law § 1192(3) and (5), in that on April 27, 1985, he "unlawfully operated and drove a motor vehicle upon a public highway while in an intoxicated condition". The evidence adduced at the trial also supported a charge down to the lesser included offense of operating a motor vehicle while the defendant's ability to operate the same was impaired by the consumption of alcohol, pursuant to Vehicle and Traffic Law § 1192(1). In accordance therewith, the defense counsel requested the trial court to instruct the jurors that they could consider the lesser included offense of "Driving While Impaired", not only if they found the defendant not guilty of the greater offense of "Driving While Intoxicated", but also if they could "not reach" or were "unable" to reach a verdict on the greater offense of "Driving While Intoxicated". In his request, the defense counsel relied on the authority of the United States Court of Appeals for the Second Circuit in United States v. Tsanas, (2nd Cir., 1978) 572 F.2d 340, cert. denied 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84. The trial court acknowledged its familiarity with United States v. Tsanas (supra), but advised the defense counsel that it would not follow it. Accordingly, it denied the defense counsel's request to charge. Instead, the trial court advised counsel that it would charge the jury as follows:

"[I]f the People fail to prove the defendant's guilt beyond a reasonable doubt on Driving While Under the Influence of Alcohol, then, and only then, will they consider Driving While Impaired".

The defense counsel duly objected.

In accordance with its refusal to charge in the manner requested by the defense counsel, the court in its charge, instructed the jurors that:

"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, the defense counsel registered his "objection as to the instruction including the lesser included offense", and cited, as additional support for his objection, the decision of the Appellate Division, Third Department, in People v. Baker, 109 A.D.2d 348, 492 N.Y.S.2d 131. The court rejected the defense counsel's objection, stating:

"THE COURT: I really don't understand the Second Circuit [and] the Third Department. If you submit it to the jury as they contend, it's a free-for-all in there".

The jury ultimately found the defendant guilty of the greater offense of operating a motor vehicle under the influence of alcohol as a felony.

On the instant appeal, the defendant argues that the trial court committed reversible error in failing to charge the jurors, in accordance with his request, that they could also consider the lesser included offense of "Driving While Impaired" if they were unable to reach a verdict as to the greater offense of "Driving While Intoxicated", viz., that it was not necessary for the jury to unanimously find him not guilty with respect to the greater offense of "Driving While Intoxicated" before considering the lesser included offense of "Driving While Impaired".

II

The concept of lesser included offenses was first introduced into the statutes of our State in 1829 when the Legislature provided as follows (2 R.S., pt. 4, ch. 1, tit. 7, § 27):

"Upon an indictment for any offence consisting of different degrees * * * the jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find the defendant guilty of any degree of such offence inferior to that charged".

This statute was superseded in 1881 by the former Code Criminal Procedure § 444 which provided as follows:

" § 444. * * * "Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime".

These statutes clearly contemplated that the jury could not consider the lesser included offense until it reached a verdict of not guilty on the greater offense. ^* However, they offered little guidance to the trial bench as to when a lesser included offense should be submitted to the jury. Evolving case law, culminating in the oft-quoted decision of the Court of Appeals in People v. Mussenden, 308 N.Y. 558, 563, 127 N.E.2d 551, set forth the answers to that question as follows:

"The principle has, accordingly, evolved that the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one."

Code of Criminal Procedure § 444, was superseded in 1970 (L.1970, ch. 996, § 1), by CPL 300.50, which provides in relevant part:

" § 300.50 Court's charge; submission of lesser included offenses

"1. In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense 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 there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense

* * *

* * *

"2. If the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so."

Although CPL 300.50(1) is "linguistically different from its statutory predessessors", it "was intended merely to reflect current judicial interpretations of the prior statute and codified what was termed the 'prevailing rule established in People v. Mussenden, 1955, 308 N.Y. 558, 562-563 ' (Commission Staff Comment to CPL 300.50)" (People v. Scarborough, 49 N.Y.2d 364, 369, 426 N.Y.S.2d 224, 402 N.E.2d 1127). In short, the Legislature, in enacting CPL 300.50(1), did not intend to change the rule that jurors could consider a lesser included offense only if they found the defendant not guilty of the greater offense. Indeed, as recently as December 1985, this court in People v. Tabarez 113 A.D.2d 461, 469, 497 N.Y.S.2d 80, stated as follows with respect to a lesser included charge given by a trial court:

"The trial court properly instructed the jurors that they could consider the lesser included offenses only if they found the defendant not guilty of attempted murder" (see also, People v. Magliato, 110 A.D.2d 266, 268 , appeal dismissed 67 N.Y.2d 829 [501 N.Y.S.2d 658, 492 N.E.2d 786]; Fuller v. United States , 407 F.2d 1199, 1227, cert denied 393 U.S. 1120 [89 S.Ct. 999, 22 L.Ed.2d 125]; United States v. Butler ; 455 F.2d 1338, 1340).

III

In arguing that he was entitled to a charge that the jurors could also consider the lesser included offense if they were "unable to reach" an agreement with respect to the greater offense, the defendant relies on the decision of the United States Court of Appeals for the Second Circuit in United States v. Tsanas, 572 F.2d 340, cert. denied 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (supra).

In United States v. Tsanas (supra) the Trial Judge instructed the jury, without objection, that they could only reach the lesser included count after they had decided unanimously to...