People v. Sutton

• Decision Date: 05 March 1984
• Citation: 473 N.Y.S.2d 203,99 A.D.2d 361
• Parties: The PEOPLE, etc., Respondent, v. Charles E. SUTTON, a/k/a Charlie Clocks, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 203

473 N.Y.S.2d 203

99 A.D.2d 361

The PEOPLE, etc., Respondent, v. Charles E. SUTTON, a/k/a Charlie Clocks, Appellant.

Supreme Court, Appellate Division Second Department.

March 5, 1984.

Block & Costa, Smithtown (Frederic Block, Smithtown, of counsel; Joseph B. Gagliardo, Deer Park, on brief), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Patricia A. Harrington, Asst. Dist. Atty., Riverhead, of counsel), for respondent.

Before GIBBONS, J.P., and THOMPSON, NIEHOFF and RUBIN, JJ.

GIBBONS, Justice Presiding.

This court has previously held that the submission to a jury of an alleged crime which is neither expressed in the accusatory instrument nor a lesser included offense to any charge in the accusatory instrument goes to the subject matter jurisdiction of the court, and an objection thereto may not be waived by the defendant (People ex rel. Gray v. Tekben, 86 A.D.2d 176, 449 N.Y.S.2d 276, affd. 57 N.Y.2d 651, 454 N.Y.S.2d 66, 439 N.E.2d 875). In this case, we are called upon to decide, among other things, whether this principle applies when the defendant himself requests or consents to the submission, rather than merely refrains from voicing an objection. We conclude that the manner or form of the defendant's purported waiver is irrelevant and that a criminal defendant is powerless to confer on a court the authority to prosecute him for a crime without an appropriate accusatory instrument.

Defendant was indicted for the crime of scheme to defraud in the first degree (Penal Law, § 190.65), 15 counts of grand larceny in the third degree (Penal Law, § 155.30, subd. 1), and 15 counts of altering a mileage registering device (General Business Law, § 392-e). Allegedly, defendant was part of an odometer roll-back scheme whereby he would reduce the mileage reading on the odometers of used cars which were being sold by various used car dealers.

At the conclusion of the trial testimony, the court found that the larceny counts were not established and, with the consent of the prosecutor and defense counsel, decided not to present those counts to the jury but instead to submit counts of criminal facilitation in the fourth degree (Penal Law, § 115.00) in their place as lesser included offenses. The jury found defendant guilty of scheme to defraud in the first degree, 10 counts of criminal facilitation in the fourth degree, and 11 counts of altering a mileage registering device.

The indictment charged defendant with 15 counts of grand larceny in the third degree under subdivision 1 of section 155.30 of the Penal Law, which states: "A person is guilty of grand larceny in the third degree when he steals property and when:

"1. The value of the property exceeds two hundred fifty dollars".

As aforestated, the court, as well as the respective trial counsel, considered that criminal facilitation in the fourth degree, under subdivision 1 of section 115.00 of the Penal Law, was a lesser-included offense of the sort of grand larceny for which defendant was indicted. Subdivision 1 of section 115.00 of the Penal Law reads as follows:

"A person is guilty of criminal facilitation in the fourth degree when believing it probable that he is rendering aid:

1. to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony".

The Court of Appeals has recently altered its interpretation of the statutory definition of a "lesser included offense" (CPL 1.20, subd. 37). Previously, one was to examine the particular criminal transaction on which the prosecution was based (see, e.g., People v. Cionek, 35 N.Y.2d 924, 365 N.Y.S.2d 161, 324 N.E.2d 544). Now the rule is that a crime is not a lesser included offense unless "in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense" (People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). An abstract, comparative examination of the Penal Law definitions of the crimes is required (People v. Green, 56 N.Y.2d 427, 430-431, 452 N.Y.S.2d 389, 437 N.E.2d 1146; People v. Glover, supra, p. 64, 453 N.Y.S.2d 660, 439 N.E.2d 376).

The People argue that because the charges against defendant of grand larceny were premised on allegations of acting in concert, or accessorial liability (Penal Law, § 20.00), the counts of criminal facilitation were properly submitted to the jury as lesser included offenses. This is an attractive argument, since criminal facilitation does involve a kind of accessorial conduct, differing from the concept of an accessory under section 20.00 of the Penal Law primarily with respect to the mental state required (see Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 20.00, pp. 43-44; Penal Law, art. 115, pp. 322-323; cf. People v. Green, supra ). Not surprisingly, in cases decided before Glover (supra ) it was held that criminal facilitation was a lesser included offense of greater charges premised on accessorial conduct (see People v. Green, 80 A.D.2d 693, 694, 436 N.Y.S.2d 453; People v. Sanders, 45 A.D.2d 768, 357 N.Y.S.2d 131).

There are two problems with the People's argument, both resulting from the Glover rule. First, the phrase "acting in concert" is not an essential element of the crime of grand larceny in the third degree (Penal Law, § 155.30, subd. 1). While the concept of accessorial liability is reflected in the wording of the charges in the indictments, and thus, concerns the theory of the case as presented to the Grand Jury, the distinction between principal and accessory has no bearing on the definition of the crimes of grand larceny charged in the indictments (People v. Duncan, 46 N.Y.2d 74, 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572; People v. Boyd, 59 A.D.2d 558, 397 N.Y.S.2d 150). Performing the abstract comparative analysis of the definitions of criminal facilitation in the fourth degree and grand larceny in the third degree that is required by Glover (supra ), we are compelled to conclude that the former is not a lesser included offense of the latter (see People v. Cable, 96 A.D.2d 251, 468 N.Y.S.2d 470; People v. De Rosa, 96 A.D.2d 762, 465 N.Y.S.2d 97; People v. De Lorenzo, 90 A.D.2d 999, 455 N.Y.S.2d 688).

Second, even if it be assumed that when one is accused of "acting in concert" with others to commit a crime, the elements of the charged crime include the definition of accessorial liability found in section 20.00 of the Penal Law, nonetheless, criminal facilitation is not a lesser included offense. Accessorial liability in section 20.00 is defined as follows:

"When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

Under this definition, one could be an accessory to grand larceny by, for example, requesting or commanding another to steal without actually providing the "means or opportunity" (criminal facilitation) to accomplish the theft. It is thus possible to be an accessory without being a facilitator. Therefore, again, we must conclude that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the third degree.

The People, citing CPL 300.50, argue that defendant waived objection to the presentment of criminal facilitation for the jury's consideration by consenting to the court's charge. In People ex rel. Gray v. Tekben, 86 A.D.2d 176, 449 N.Y.S.2d 276, supra, a similar contention was made in a case wherein the defendant had not objected when the trial court improperly decided to consider assault in the third degree as a lesser included offense of assault in the second degree. This court, in an opinion by Justice DAMIANI, responded, as follows (pp. 179-180, 449 N.Y.S.2d 276):

"A criminal court acquires subject matter jurisdiction of the trial of a criminal action by the filing of an accusatory instrument (CPL 100.05, 10.20, 10.30). 'A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' (People v. Harper, 37 NY2d 96, 99 [371 N.Y.S.2d 467, 332 N.E.2d 336]; see, also, People v. McGuire, 5 NY2d 523, 527 [186 N.Y.S.2d 250, 158 N.E.2d 830]; People v. Scott, 3 NY2d 148, 152 [164 N.Y.S.2d 707, 143 N.E.2d 901] ). In the underlying criminal case, the Supreme Court, Bronx County, obtained jurisdiction with the filing of an indictment charging defendant with the crime of assault in the second degree. That indictment only conferred jurisdiction to render judgment on the charged crime or lesser included offenses thereof (CPL 1.20, subd. 37; 300.30, 300.40, 320.20, subd 5 [last sentence] ).

"Judge CIPARICK rendered a verdict of acquittal of the crime for which defendant was indicted. She found petitioner not responsible by reason of mental disease or defect of a crime for which he had not been indicted and which was not a lesser included offense. She was without jurisdiction to render any verdict whatever on that latter charge (see People v. Strawder, 78 AD2d 810 [433 N.Y.S.2d 112] ).

"The respondent on this appeal, citing CPL 300.50, argues that petitioner waived objection to consideration of assault in the third degree by failing to object when Judge CIPARICK announced that she would do so. We construe the waiver provision contained in that section to apply to the sentence which immediately precedes it and to refer only to error by the court in submitting a lesser included offense which is not supported by legally sufficient trial evidence. It does not apply to the improper submission of noninclusory offenses since subject matter jurisdiction of the court may not be waived by...