Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #12

Issue: Lesser Included Offenses in New York State

Lesser included offenses are important at trial as well as in other contexts. A lesser included offense lacks one or more of the elements of a higher crime.

Two sections of the Criminal Procedure Law are needed to understand what constitutes a lesser included offense.  If it is impossible to commit a greater offense without, at the same time and by the same conduct, committing a lesser offense, the latter is a lesser included offense. CPL 1.20(37). In charging a jury, the court may submit an lesser included offense if there is a reasonable view of the evidence that the defendant committed the lesser offense but did not commit the greater. CPL 300.50. Together, these form the basis of the Green-Glover test. People v Green, 56 NY2d 427, 452 NYS2d 389 (1982); People v Glover, 57 NY2d 61, 453 NYS2d 660 (1982).

The court must look at the evidence in the light most favorable to the defendant. People v Martin, 59 NY2d 704, 463 NYS2d 419 (1983).

Lesser included offenses may play an important role in a variety of situations in a criminal action. These include:

  • Plea bargaining: Plea bargaining is discretionary with the prosecutor. CPL 220.20(1), 220.30.
  • Grand jury proceedings:  If grand jurors inquire about a lesser included offense, the prosecutor, as legal advisor, must address their request. People v Francis, 166 Misc2d 476, 634 NYS2d 639 (Sup 1995).
  • Review of grand jury minutes: If the evidence is insufficient for the count charged but sufficient for a lesser charge, the judge inspecting the grand jury minutes may reduce the count in the indictment to a lesser included offense. CPL 210.20(1)(a).
  • Motion for a trial order of dismissal: The motion is based on the ground that the trial evidence is legally insufficient to establish the offense charged or any lesser included offense. CPL 290.10.
  • Jury charge: Viewing the evidence in the light most favorable to the defense, if there is any reasonable view of the evidence that the defendant committed the lesser offense but not the higher offense, the jury must be charged on the lesser. People v Martin, 59 NY2d 704, 463 NYS2d 419 (1983).
  • Waiver of indictment: If a charge is not a proper lesser included offense of what was charged in a local court, it may not be included in a superior court information. People v Edwards, 39 AD3d 875, 835 NYS2d 309 (2d Dept 2007).
  • Guilty plea: Whether the plea colloquy was sufficient. Where a defendant pleads guilty to a lesser included offense, no factual allocution is required. People v Clairborne, 29 NY2d 950, 329 NYS2d 580 (1972).

    Where the guilty plea is to an offense not charged in the indictment nor to a lesser included offense, the plea may be jurisdictionally defective. People v Castillo, 8 NY3d 959, 836 NYS2d 505 (2007); People v Johnson, 89 NY2d 905, 653 NYS2d 265 (1996).
  • Appeal: If the defense requests a lesser included offense, the defendant waives the right to challenge the submission of it on appeal. People v Mills, 1 NY3d 269, 772 NYS2d 228 (2003). Similarly, if the defense fails to object to a lesser included offense, the right to challenge on appeal is waived. CPL 300.50(1); People v Martinez, 179 AD2d 935, 579 NYS2d 233 (3d Dept 1992).


"If the average man reads an obscene book when his sensuality is low, he will yawn over it. If he reads the Mechanics Lien Act when his sensuality is high, things will stand between him and the page that have no business there." Pennsylvania Judge Curtis Bok


John Doe indictment / John Doe DNA indictment

An indictment in which a specific defendant is not named, but is described, e.g., via physical description, photograph, fingerprints, or DNA. 

People v Dickson, 133 AD2d 492, 519 NYS2d 419 (3d Dept 1987); State v Dabney, 264 Wis 2d 843, 663 NW2d 366 (2003); 150 U Pa L Rev 1079 (2002). 


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