People v. Weissinger

• Decision Date: 09 October 1984
• Citation: 104 A.D.2d 917,480 N.Y.S.2d 526
• Parties: The PEOPLE, etc., Respondent, v. John WEISSINGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 526

480 N.Y.S.2d 526

104 A.D.2d 917

The PEOPLE, etc., Respondent, v. John WEISSINGER, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 9, 1984.

Richard Hartman, Little Neck (Thomas J. Klei, Jr., Northport, and Raymond E. Kerno, New York City, of counsel, Gerard Breen on the brief), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens, (William Schrager, Asst. Dist. Atty., Kew Gardens, of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, BROWN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment affirmed and matter remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd. 5).

Pursuant to defense counsel's request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. Defendant was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. Defendant now argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is nonwaivable inasmuch as it goes to the court's subject matter jurisdiction. Criminal Term resolved both issues against defendant (People v. Weissinger, 121 Misc.2d 818, 469 N.Y.S.2d 290). Because defendant effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, we affirm.

A comparative evaluation of the two operative statutes, grand larceny in the second degree (Penal Law, § 155.35) and criminal facilitation in the fourth degree (Penal Law, § 115.00, subd. 1), reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony (see People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376).

Nor does the fact that the charges of grand larceny were grounded on a theory of accessorial liability (Penal Law, § 20.00) render criminal facilitation in the fourth degree a lesser included offense of grand larceny in the second degree. The phrase "acting in concert" is not an essential element of the crime of grand larceny in the second degree (see People v. Sutton, 99 A.D.2d 361, 364, 473 N.Y.S.2d 203). Moreover, assuming, arguendo, that the definition of accessorial liability contained in section 20.00 of the Penal Law could be grafted onto the elements of grand larceny in the second degree, the crime of criminal facilitation would still not qualify as a lesser included offense. As we recently noted in similar circumstances, under the definition of accessorial liability, "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" (People v. Sutton, supra, p. 364, 473 N.Y.S.2d 203). Hence, criminal facilitation in the fourth degree is...