Whether the trial court properly refused to submit a lesser included offense, pursuant to CPL § 300.50, where there was no identifiable record basis upon which a jury might reasonably differentiate between segments of a witness's testimony, rejecting those relating to the greater offense and accepting those relating to the lesser offense.
Yes. Where there is no reasonable basis upon which the jury could simultaneously credit the testimony necessary to establish the lesser offense and reject the very same testimony establishing the greater offense, then a charge-down is inappropriate.
A police officer observed the defendant engage in two separate narcotics-related transactions and arrested him. At the jury instruction conference, the defendant requested the trial court submit to the jury a simple possession charge as a lesser included offense to the greater offense of possession with intent to sell.
Under CPL § 300.50(1), in addition to the requirement that it submit the greatest offense, the trial court may submit to the jury any lesser included offense if the evidence could reasonably support a finding that the defendant committed the lesser offense and not the greater offense. However, under prior case law, where proof of guilt of the greater and lesser offenses is found essentially in the testimony of one witness, a charge-down to the lesser offense is only appropriate where it would be reasonable for a jury to reject the portion of the witness's testimony establishing the greater offense, while crediting portions that establish the lesser crime.
Although the defendant had argued that the police officer's testimony was not so integrated as to prohibit the jury from rejecting some portions of the testimony while crediting others, the Supreme Court denied the defendant's request to charge the jury on the lesser included offense. The Appellate Division, relying on the Court of Appeals decision in People v. Scarborough, 49 N.Y.2d 364, affirmed. The Court of Appeals affirmed, finding that the officer's testimony was properly deemed integrated because the portion of the testimony that constituted the proof of the lesser offense defendant's simple possession was the very same portion that constituted the proof of the greater charge.
Prepared by the liibulletin-ny Editorial Board.