People v. Weissinger

• Decision Date: 26 October 1983
• Citation: 469 N.Y.S.2d 290,121 Misc.2d 818
• Parties: The PEOPLE of the State of New York v. John WEISSINGER, Defendant.
• Court: New York Supreme Court

Page 290

469 N.Y.S.2d 290

121 Misc.2d 818

The PEOPLE of the State of New York v. John WEISSINGER, Defendant.

Supreme Court, Criminal Term Queens County, Part C1.

Oct. 26, 1983.

Thomas J. Klei, Northport, for defendant.

John J. Santucci, Dist. Atty. (Mitchell Golub, Asst. Dist. Atty.), for plaintiff.

MEMORANDUM

SEYMOUR ROTKER, Acting Judge.

The defendant has moved for an order setting aside a jury verdict of guilty on four counts of criminal facilitation in the fourth degree upon the reason that grounds appear in the trial record which, raised upon an appeal from the prospective judgment of conviction would require a reversal of the judgment as a matter of law by an Appellate Court (CPL 330.30[1] ).

The indictment charged defendant with three counts of grand larceny in the second degree, three counts of attempted grand larceny in the second degree, three counts of insurance fraud in the first degree and three counts of attempted insurance fraud in the first degree. The six counts of the indictment relating to insurance fraud were dismissed by the court on Sept. 27, 1982 upon motion of the defendant and with the consent of the District Attorney. A jury trial was commenced by this court on July 18, 1983 as to the remaining counts of the indictment. At the conclusion of the entire case, counsel for the defendant requested that the court charge the jury with criminal facilitation in the fourth degree as a lesser included offense of the grand larceny and attempted grand larceny counts submitted to the jury. The court consented to give the lesser charge and did so with the consent of the District Attorney. The defendant was ultimately found guilty of four counts of criminal facilitation, relating to events transpiring on April 11, 1983. He was acquitted of all other charges.

Counsel for defendant now asserts that criminal facilitation is not a lesser included offense of grand larceny in the second degree and that, notwithstanding his failure to object to the charge, it is a non-waivable jurisdictional prerequisite that such a charge submitted to a jury actually be a lesser included offense. The District Attorney has argued that the defendant waived objection to the court's charge by specifically requesting the jury charge in question. Moreover, the People have asserted that criminal facilitation is a lesser included offense of grand larceny where the defendant is charged with acting in concert with another.

The ultimate issue for consideration in this matter is whether criminal facilitation in the fourth degree is a lesser included offense of grand larceny in the second degree where the defendant is charged with acting in concert with another. The recent decision in People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376 has set forth an exacting standard for the submission of a lesser included offense and casts doubt upon the viability of many long-thought lesser criminal offenses. The court in Glover set forth a two-prong test for the submission of a lesser included offense. First, it must be demonstrated that in theory and not just by an examination of the criminal transaction at bar, it is impossible to commit the greater crime without also committing the lesser offense. This requires comparative examination of the statutory language of the two offenses. Secondly, the defendant must show that there is a reasonable view of the evidence that would support a finding that he committed the lesser offense, but not the greater offense charged. Utilizing this analysis, the Glover court held that criminal facilitation in the second degree was not a lesser included offense of criminal sale of a controlled substance in the first degree in that the first prong of the test was not met. The court held that it was theoretically possible for a defendant to sell a drug illegally without aiding anyone else in the commission of a class A felony. In the instant case, the situation is somewhat different from Glover in that the defendant is charged with acting in concert with another.

A comparative examination of the statutes at bar reveals the following: Grand larceny in the second degree requires that one steals property and when the value of the property exceeds $1500. This crime requires an intent to deprive another of property and appropriate same to himself or a third party. Under the circumstances of this case, the larceny was to have been committed by false pretenses. The defendant was charged with acting in concert with another to commit the crime of grand larceny in the second degree. In this case accessorial liability was predicated upon a finding that defendant intentionally aided the codefendant to engage in conduct constituting grand larceny. The necessary element of the acting in concert theory is that the defendant act with the mental culpability necessary for the commission of the offense. Criminal facilitation requires that the person engage in conduct which provides another person with the means or opportunity for the commission of a crime and which, in fact aids such person to commit a felony. The actor must believe it probable that he is rendering aid in the commission of such crime. A comparative analysis of these statutes reveals that it is impossible to commit the crime of grand larceny in the second degree (acting in concert) with another without committing the crime of criminal facilitation in the fourth degree. Both crimes require that the defendant engage in conduct which aids another to commit a crime. A distinguishing factor of the greater charge is that the defendant must have the necessary intent to commit the larceny, while in criminal facilitation, the defendant need only have the intent to aid another in the commission of a crime. As the elements of the two crimes are substantially the same, the court finds that the first prong of the Glover test has been met. There is no doubt that under the facts of this...