People v. Green

• Decision Date: 23 June 1982
• Citation: 56 N.Y.2d 427,452 N.Y.S.2d 389,437 N.E.2d 1146
• Parties: , 437 N.E.2d 1146 The PEOPLE of the State of New York, Respondent, v. Leonard GREEN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 389

452 N.Y.S.2d 389

56 N.Y.2d 427, 437 N.E.2d 1146

The PEOPLE of the State of New York, Respondent, v. Leonard GREEN, Appellant.

Court of Appeals of New York.

June 23, 1982.

Andrew C. Fine and William E. Hellerstein, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (James H. Fogel and Robert M. Pitler, New York City, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

A crime which as defined by the Penal Law includes as an element defendant's mental state can be a lesser included offense of a crime the definition of which requires the same act but a higher mental state, but cannot be a lesser included offense of a crime in the definition of which mental state plays no part. It was, therefore, error for the trial court to refuse defendant's request that assault in the second degree be charged under an indictment charging assault in the first degree. The order of the Appellate Division, 82 App.Div.2d 781, 441 N.Y.S.2d 758, should, therefore, be reversed and a new trial ordered.

When a crime may or must be submitted to the jury as a lesser included offense and the effect of doing so are governed by CPL 1.20 (subd. 37) and CPL 300.50. ¹ "Lesser included offense" is defined by CPL 1.20 (subd. 37) as follows: "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.' " ² Absent a request for submission of a lesser included offense, it is not error not to do so, but the court may, and if a request is made by either party the court must, "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. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate" (CPL 300.50, subds. 1, 2). CPL 300.50 (subd. 4) also requires that when two or more offenses are submitted in the alternative under the section, the court 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. The principle behind these provisions is as we stated in People v. Perez, 45 N.Y.2d 204, 209, 408 N.Y.S.2d 343, 380 N.E.2d 174, "that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act may, because of statutory definition, be theorized as constituting separate criminal acts."

Whether a crime is a lesser included offense under these provisions is determined by a two-tiered analysis, as our Per Curiam in People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376 (decided herewith) makes clear: (1) considering in the abstract the Penal Law definition of the crime charged in the indictment in relation to the Penal Law definition of the claimed lesser included offense, is it theoretically impossible to commit the greater crime without at the same time committing the lesser; (2) is there a reasonable view of the evidence in the particular case that would permit the jury to conclude that the defendant committed the lesser but not the greater offense. The impossibility element speaks not to all the variations of the greater offense that are detailed in a Penal Law section with numerous subdivisions, but only to the subdivision which the particular act or omission referred to in the indictment brings into play. The theoretical comparison then to be made is of the act or omission which each statute makes criminal and whether the greater offense is one of strict liability rather than one of mental culpability.

If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met and the charge should not be given (People v. Graham, 44 N.Y.2d 768, 406 N.Y.S.2d 36, 377 N.E.2d 480 People v. Acevedo, 40 N.Y.2d 701, 389 N.Y.S.2d 811, 358 N.E.2d 495 see, also, People v. Ramirez, 55 N.Y.2d 708, 447 N.Y.S.2d 138, 431 N.E.2d 623; People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273). Likewise, when the greater crime is an offense of strict liability with respect to an element of required conduct, no offense which includes as part of its required conduct a culpable mental state can be a lesser included offense because it is possible to commit the greater offense without "by the same conduct" committing the lesser. In such a case the impossibility test has not been met and the charge should not be given (People v. Miguel, 53 N.Y.2d 920, 440 N.Y.S.2d 923, 423 N.E.2d 400 People v. Newton, 46 N.Y.2d 877, 414 N.Y.S.2d 680, 387 N.E.2d 612 serious physical injury was caused do not require proof of mental culpability] ). ³

If, however, both the lesser and the greater offenses require demonstration of a culpable mental state, the fact that the degree of culpability specified for each differs from the other does not foreclose giving a lesser included charge on impossibility grounds. The reasons for this are spelled out in People v. Stanfield, 36 N.Y.2d 467, 369 N.Y.S.2d 118, 330 N.E.2d 75 ⁴ and, though no issue on this question has been raised by the parties, bear review and reaffirmation in view of the arguments advanced in the dissent. Stanfield recognized that the various degrees of culpability specified in subdivision 6 of section 15.00 of the Penal Law and defined in section 15.05 (intentionally, knowingly, recklessly, with criminal negligence) are not capable of direct proof. They are, instead, to be inferred from the facts and circumstances proved and involve "fine gradations along but a single spectrum of culpability" (36 N.Y.2d, at p. 473, 369 N.Y.S.2d 118, 330 N.E.2d 75), the lower mental states being necessarily included in the higher forms of mental culpability. Consequently, we held, the result and underlying conduct of criminally negligent homicide (Penal Law, § 125.10) and manslaughter, second degree (Penal Law, § 125.15, subd. 1), being identical and the only distinction between the two crimes being the mental state of the defendant, it is, within the meaning of CPL 1.20 (subd. 37) and CPL 300.50, impossible to commit the latter without concomitantly committing the former. We reached that conclusion, moreover, notwithstanding the People's contention that the necessary implication of CPL 220.20 was to the contrary (36 N.Y.2d, at p. 472, 369 N.Y.S.2d 118, 330 N.E.2d 75). In concluding that the kaleidoscopic nature of the varying degrees of mental culpability warranted the broader view of the statutory definition of "lesser included offense" adopted by us, rather than the overly mechanical reading urged upon us by the People, we were guided in part by the fact that the rule adopted serves the best interests of both the person accused and the People. From the perspective of the accused, submission of a lesser included offense enables the jury to extend mercy by providing a less drastic alternative than the choice between acquittal and conviction of the offense charged (People v. Mussenden, 308 N.Y. 558, 562, 127 N.E.2d 551; People v. Rytel, 284 N.Y. 242, 245, 30 N.E.2d 578; see, also, Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392). ⁵ But submission of a lesser included offense redounds to the benefit of the People as well, for it may prevent "the prosecution from failing where some element of the crime charged was not made out" (People v. Murch, 263 N.Y. 285, 291, 189 N.E. 220; see, generally, Pitler, New York Criminal Practice Under the CPL, § 12.49, p. 660 ).

Stanfield's rule and rationale have been applied in later cases in which we held that reckless manslaughter is a lesser included offense of intentional murder (People v. Murray, 40 N.Y.2d 327, 335, 386 N.Y.S.2d 691, 353 N.E.2d 605, cert. den. 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796; People v. Tai, 39 N.Y.2d 894, 386 N.Y.S.2d 395, 352 N.E.2d 582; see, also, People v. Russo, 41 N.Y.2d 1091, 1092, 396 N.Y.S.2d 353, 364 N.E.2d 1124; People v. Strong, 37 N.Y.2d 568, 376 N.Y.S.2d 87, 338 N.E.2d 602). Indeed, this court has consistently applied the rule that where the elements of the lesser offense (i.e., result and underlying conduct) are identical with the requisite elements of the greater crime and the only thing that differs between the two crimes is the culpable mental states, the CPL definition of "lesser included offense" is nevertheless satisfied since the lower forms of mental culpability are necessarily subsumed within the higher mental states. Moreover, in the seven years that have elapsed since Stanfield was decided, the Legislature has expressed no disagreement with its holding nor has either the defense or the prosecution side of the trial bar. Usual principles of stare decisis suggest, therefore, that we should make no change in the Stanfield rule now (see Matter of Higby v. Mahoney, 48 N.Y.2d 15, 19, 421 N.Y.S.2d 35, 396 N.E.2d 183 and that neither People v. Ramirez, 55 N.Y.2d 708, 447 N.Y.S.2d 138, 431 N.E.2d 623, supra, nor People v. Miguel, 53 N.Y.2d 920, 440 N.Y.S.2d 923, 423 N.E.2d 400 supra, can be regarded as having overruled or modified the Stanfield rule sub silentio, as the dissenter, who concurred in the Stanfield decision and appears still to accept its rationale, suggests. The fallacy of the dissent is in failing to distinguish, as does section 15.10 of the Penal Law, between an offense of strict liability (one which "does not...