At a criminal trial, the court instructs the jury on the elements of the offenses charged in the indictment. The court may also charge on one or more "lesser included offenses."
Whether an offense constitutes an LIO is determined by the Green-Glover test. Under this two-pronged test, it must be theoretically impossible to commit the greater crime without, at the same time, committing the lesser. If the lesser charge contains any new element than what was contained in the higher, it is not a proper lesser included. Second, whether the jury could reasonably find that the defendant did not commit the greater crime, but did commit the lesser. People v Green, 56 NY2d 427, 452 NYS2d 389 (1982); People v Glover, 57 NY2d 61, 453 NYS2d 660 (1982). See Muldoon and Feuerstein, Handling a Criminal Case in New York, § 16:6.
The standard for determining whether to charge the jury on a valid LIO is that the court must view the trial evidence in the light most favorable to the defendant. If the evidence is susceptible to the possibility that the defendant committed the lesser offense, that lesser must be charged. Handling § 16:12.
Enter Penal Law § 15.25, entitled "Effect of intoxication." This section provides that intoxication is not defense, but evidence of it may be introduced to "negative" an element of the crime.
What is the effect of intoxication evidence on a charge down to a lesser included offense? Case law holds that a charge down is not mandatory with a specific intent crime.
The rule that a charge down is not automatically granted based on intoxication had its genesis in People v Butler, 84 NY2d 627, 620 NYS2d 775 (1994). See Handling §§ 15:88, 16:22. According to that decision, the judge must independently review the evidence presented in order to determine whether there is a reasonable view of the evidence that requires a charge down.
The fact that the top count is intentional and the lesser is reckless does not require a charge down with intoxication evidence. In Butler, a homicide case, in view of the nature and brutality of the slaying, a jury could have acquitted defendant of intentional murder, but could not have found that defendant acted recklessly or with intent to merely seriously injure.
In one decision, the trial court declined to charge down from Murder 2nd to the lesser offense of Manslaughter 2nd, even though there was evidence of serious intoxication. The court did, however, instruct on intoxication. (The standard for whether intoxication should be charged is the same as the lesser included offense standard: viewing the evidence in the light most favorable to the defense. People v Cody, 260 AD2d 718, 689 NYS2d 246 (3d Dept 1999)). On appeal, the failure to charge the LIO was affirmed, despite the judge's charge on intoxication as a defense to the top count.
QUOTATION:
"No mistake is more common and more fatuous than appealing to logic in cases
which are beyond her jurisdiction."
Samuel Butler
SLANGUAGE:
Canvass
State. Police, accompanied by crime victim or witness, searches area,
seeking to identify and apprehend perpetrator. May be the subject of a
suppression motion. People v Dixon, 85 NY2d 218, 623 NYS2d 813
(1995); Handling § 9:228.
Gary Muldoon is a member of the Assigned Counsel panel in Monroe County author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at www.west.thomson.com. Cost of the soft cover edition is $241.00.
Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact www.lexis.com.
Gary Muldoon
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