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 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.
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) 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
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 [giving an unlawful gratuity which is rewarding official conduct already performed (Penal Law, § 200.30), not lesser included of bribery the gist of which is the effort to influence an official act yet to be performed (Penal Law § 200.00)]; People v Acevedo, 40 N.Y.2d 701 [robbery, second degree, which requires proof that defendant was aided by another person actually present (Penal Law, § 160.10, subd 1), not lesser included of robbery, first degree, which does not (Penal Law, § 160.15)]; see, also, People v Ramirez, 55 N.Y.2d 708; People v Greer, 42 N.Y.2d 170). 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 877 [assault, first degree, which requires proof that defendant acted recklessly or with specific intent to cause physical injury (Penal Law, § 120.00), not lesser included of either robbery, second degree (Penal Law, § 160.10), or felony assault (Penal Law, § 120.05, subd 6), neither of which requires proof of a culpable mental state with respect to the physical injury caused]; People v Newton, 46 N.Y.2d 877 [assault, first degree, which requires proof of an intent to cause serious physical injury (Penal Law, § 120.10, subd 1), not lesser included of robbery, first degree, under either subdivision 1 or 3 of section 160.15 of the Penal Law, which though they require proof that
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)
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, cert den 430 U.S. 948; People v Tai, 39 N.Y.2d 894; see, also, People v Russo, 41 N.Y.2d 1091, 1092; People v Strong, 37 N.Y.2d 568). 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
The second prong of lesser included offense analysis requires review of the evidence presented in the particular case to determine whether there is a reasonable view of the evidence upon which the jury could find that defendant committed the lesser offense but not the greater (CPL 300.50, subd 1; People v Henderson, 41 N.Y.2d 233). In that analysis the court's evaluation of the persuasiveness of the evidence of guilt of the greater crime is irrelevant and the jury's right to accept some part of the evidence presented by either side and reject other parts of that proof must be respected (People v Henderson, supra; People v Shuman, 37 N.Y.2d 302; People v Asan, 22 N.Y.2d 526).
In the instant case defendant was charged with attempted murder in the second degree under section 110.00
There is also a reasonable view of the evidence from which the jury could conclude that defendant committed the lesser but not the greater offense. Although the victim's testimony was that the trigger was deliberately pulled, there was before the jury the testimony of Peter Mitchell, introduced by the People, that defendant said as they ran from the scene that the gun went off by accident. The jury could conclude on the basis of that testimony, the evidence that the weapon was given to defendant but a few minutes before the shooting, and his age that the act of shooting was reckless but accidental, or that defendant's statement was a subjective, but untruthful, effort to lessen his guilt, but it cannot be said that the latter is the only or even a necessarily more reasonable view of the evidence than the former.
Nor can it be said that the error in failing to submit the lesser crime was harmless. Only if defendant were convicted of the higher offense charged (attempted murder in the second degree) and acquitted of the lower offense charged (assault in the first degree) would the failure to charge an even lesser offense (second degree assault) be harmless. The fact that defendant was convicted of both offenses charged (attempted murder and first degree assault)
The order of the Appellate Division should, therefore, be reversed and a new trial ordered.
Because I believe the result reached by the majority in this case represents a departure from the strict approach we have recently taken to the proper definition of a "lesser included offense", I must dissent.
It now appears to be settled that, in order to have a "lesser included offense" submitted to the jury as an alternative charge to a greater offense, two showings must be made. First, it must be shown that the particular offense meets the definition of a "lesser included offense" contained in CPL 1.20 (subd 37). Secondly, there must be a reasonable view of the evidence to support a finding that the defendant committed the lesser offense rather than the greater offense (CPL 300.50).
It is the first requirement that has given the courts trouble and which is the focal point of this appeal. "Lesser included offense" is defined in the Criminal Procedure Law in the following manner: "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'" (CPL 1.20, subd 37). At one time, this court approached the interpretation of this definition by taking into consideration the facts of the particular case (People v Cionek, 35 N.Y.2d 924; People v Hayes, 35 N.Y.2d 907, affg on opn below 43 A.D.2d 99). We have, however, recently abandoned that approach in favor of one which abides by a literal reading of the statutory definition. Thus, in order to satisfy the first requirement of CPL 300.50 — that the offense sought to be charged is indeed a "lesser included offense" — it must be shown that it is theoretically impossible to commit the greater offense without concomitantly
Using this interpretation of the term "lesser included offense", we recently held, in People v Miguel (53 N.Y.2d 920), that the crime of assault in the third degree (Penal Law, § 120.00), requiring either that defendant intentionally or recklessly cause physical injury, is not a "lesser included offense" of either the crime of robbery in the second degree (Penal Law, § 160.10, subds 1, 2, par [a]) or felony assault (Penal Law, § 120.05, subd 6). Because it is possible to commit either of the two greater offenses charged without concomitantly committing assault in the third degree, the latter crimes is not a "lesser included offense", notwithstanding that, on the facts of the particular case, it may have been true that commission of the greater offense included commission of the lesser.
Similarly, in People v Ramirez (55 N.Y.2d 708), we held that reckless endangerment in the first degree (Penal Law, § 120.25) is not a "lesser included offense" of attempted murder in the second degree (Penal Law, §§ 110.00, 125.25, subd 1), because the crime of reckless endangerment requires that a grave risk of death be created by defendant's conduct, which is not required for the crime of attempted murder. This is so, even though in many cases, an attempt to commit murder will involve the creation of a grave risk of death. However, there remains the theoretical possibility that an attempt to commit murder, rendered innocuous by some circumstances of factual impossibility, will not create a grave risk of death to another person. It is this possibility that the greater offense might, under a given set of circumstances, be committed without also committing the lesser offense, that precludes the lesser offense from being considered a "lesser included offense".
Finally, in the case decided simultaneously with the present case, we have reaffirmed our strict interpretation of what constitutes a "lesser included offense". In People v Glover (57 N.Y.2d 61), we held that criminal facilitation in the second degree (Penal Law, § 115.05) is not a "lesser included offense" of the crime of criminal sale of a controlled
Although the court now appears committed to this approach, the majority nevertheless has concluded that an entirely different approach is warranted in cases where the only difference between the charged crime and the crime of lesser grade is the mental state with which the crime is committed. In so doing, the majority relies upon cases such as People v Stanfield (36 N.Y.2d 467), whose rationale I firmly believe has been overruled by our recent cases on this point.
In People v Stanfield (supra), the court articulated a rule to the effect that where the result and the underlying conduct of two crimes are the same, the only difference being the mental element, the lesser of the two crimes is to be considered a "lesser included" of the greater. On the facts of Stanfield, this rule resulted in a holding that the crime of criminally negligent homicide (Penal Law, § 125.10) is a "lesser included offense" of the crime of manslaughter in the second degree (Penal Law, § 125.15, subd 1). Later cases adopted the view that where the crimes involve the same conduct and result, but contemplate a differing mental element, a crime involving reckless conduct may properly be considered a "lesser included offense" of a crime involving intentional conduct (see, e.g., People v Tai, 39 N.Y.2d 894; People v Murray, 40 N.Y.2d 327).
Clearly then, this court has, in the past, adhered to the theory expressed by the majority today that the varying mental states exist along a continuum and that the lesser forms of mental culpability are necessarily included within the higher forms. My disagreement with the majority lies in my belief that the rationale underlying that theory is no longer a plausible one, in view of the recent decisions of this court.
It bears repeating that this recent authority establishes the principle that an offense is a "lesser included offense" only if it is theoretically impossible, under every set of circumstances, to commit the greater offense without concomitantly committing the lesser. An examination of the definitions of the various culpable mental states contained in the Penal Law demonstrates the difficulty with the majority's theory. A person acts "intentionally" when his conscious objective is to cause a particular result or engage in particular conduct (Penal Law, § 15.05, subd 1); he acts "recklessly" when he is aware of and consciously disregards a substantial and unjustifiable risk that a particular result will occur (Penal Law, § 15.05, subd 3); and one acts with criminal negligence when he fails to perceive a substantial and unjustifiable risk that a particular result will occur (Penal Law, § 15.05, subd 4). Although I agree with the majority that, in reality, there may be but shades of difference between these mental states on the facts of a given case, nevertheless, the theoretical possibility of committing a crime of intent without at the same time committing a crime of recklessness or criminal negligence does exist. Indeed, these mental states are mutually exclusive in the sense that the existence of one mental state on the part of a given actor precludes the existence of all others. One who acts intentionally, that is, with specific intent to bring about a particular result, cannot, at the same time, have acted merely in conscious disregard of a substantial risk. More obviously, one cannot act in conscious disregard of a substantial risk and at the same time fail to perceive that risk. Practical difficulties in terms of the nature of proof and the varying inferences that might be drawn from it do not justify a departure from the clear statutory language. And while I can sympathize with the desire for greater flexibility in this area, I believe the adoption of such an approach is, at this point, a matter of legislative concern.
Accordingly, I dissent and vote to affirm the order of the Appellate Division.
Order reversed, etc.