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Issues In NY Criminal Law--Vol. 4, #5©

Issue: What is an inclusory concurrent count?

The concept of "lesser included offense" is a familiar one. The term is provided for in CPL 1.20(37) and CPL 300.50. Less familiar but related terms, also found in CPL article 300, are "inclusory concurrent count," "concurrent count," and "non-inclusory concurrent count."

To understand the definition of inclusory concurrent count, one must understand the definition of a concurrent count. Once you understand inclusory concurrent count, all other concurrent counts are non-inclusory concurrent counts. It's probably a lot easier to use some examples.

Non-inclusory concurrent counts
The defendant in People v Kulakov, 278 AD2d 519, 716 NYS2d 824 (3d Dept 2000), was charged with several counts of Criminal possession of a weapon 3rd, Penal Law § 265.02. Convicted of all counts, and receiving concurrent sentences, he argued on appeal that the trial judge should not have allowed all of the charges to go to the jury. These charges were non-inclusory concurrent counts. The Third Department disagreed with defendant's argument: under the statute, the trial judge has discretion whether to dismiss or submit non-inclusory concurrent counts. CPL 300.40(3)(a). On appeal, the duplicative convictions stood.

As Justice James Boomer explained in a Fourth Department decision, they "are concurrent counts because they were committed through a single act or omission. They are non-inclusory concurrent counts because one is not greater than the other and one does not contain all of the elements of the other." People v Davis, 165 AD2d 610, 569 NYS2d 999 (4th Dept 1991) (citations omitted).
The statute specifically provides that whether to submit multiple non-inclusory concurrent counts is in the trial judge's discretion. Part of the statute's rationale is that "multiplicity of counts or complexity of the indictment requires judicial trimming to prevent overburdening the jury." Preiser, Practice Commentary to McKinney's CPL 300.40. See also, People v Gettman, 188 Misc2d 809, 729 NYS2d 858 (County Ct 2001); Handling a Criminal Case in New York, 2001-2002 edition, § 3:64 (West Group). When you have one of those 37-count indictments, it's usually a situation of what in football circles is referred to as "piling on." If the prosecutor has no sense of discretion, the judge should.
Inclusory concurrent counts
With this concept firmly implanted in your short-term memory, let's move on to inclusory concurrent counts. With these, the trial judge submits the greatest count and perhaps the "lesser included counts." These lower counts are submitted in the alternative only. A guilty verdict on the highest count is deemed a dismissal of every lesser count. CPL 300.40(3)(b).

For example, in an Oneida County appeal, the defendant was convicted of Attempted murder 2nd degree and both Assault 1st degree and Assault 2nd degree, receiving concurrent sentences. Assault 2nd is a "lesser included offense" of Assault 1st; therefore the two assault counts should have been charged to the jury only in the alternative. The Assault 2nd conviction, an inclusory concurrent count, was dismissed. People v Fort (4th Dept March 2002). Where two or more counts arise out of the same incident and the counts allege the same subdivision of the Penal Law, only one of the convictions may stand. People v Griswold, 174 AD2d 1038, 572 NYS2d 202 (4th Dept 1991).

Result on appeal

Thus, as in Kulakov, where the defendant is convicted of non-inclusory concurrent counts, on appeal those convictions will remain, unless the appellate court finds that the trial court abused its discretion in submitting the counts. But where the defendant is convicted of both an inclusory concurrent count as well as a higher count, on appeal the lower counts should be dismissed, as in People v Fort.

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