New York Criminal Lawyer Blog
An appeal was made by the accused man from a judgment of the County Supreme Court rendered on October 26, 1983, convicting him of four counts of criminal facilitation in the fourth degree, upon a jury verdict, and the imposing sentence. A New York Criminal Lawyer said the judgment was affirmed and the matter was remitted to the County Supreme Court for further proceedings pursuant to the Criminal Procedure Law.
Pursuant to the defense counsel’s request, the trial court charged criminal facilitation in the fourth degree as a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree. The accused man was ultimately found guilty of four counts of criminal facilitation in the fourth degree and acquitted of all other charges. The accused argues, as he did on his motion to set aside the verdict, that criminal facilitation in the fourth degree is not a lesser included offense of grand larceny in the second degree and attempted grand larceny in the second degree and that the defect in erroneously charging such a request is non-waivable inasmuch as it goes to the court’s subject matter jurisdiction. A New York Criminal Lawyer said criminal Term resolved both issues against the accused man. Since the accused man effectively waived any error in the submission of the charge of criminal facilitation in the fourth degree to the jury, the Appellate Court affirms.
A comparative evaluation of the two operative statutes, grand larceny in the second degree and criminal facilitation in the fourth degree reveals that the latter is not a lesser included offense of the former because it is theoretically possible for a person to commit the crime of grand larceny in the second degree without intending to aid anyone else in the commission of a felony.
Nor does the fact that the charges of grand larceny were grounded on a theory of accessorial liability render criminal facilitation in the fourth degree a lesser included offense of grand larceny in the second degree. The phrase acting in concert is not an essential element of the crime of grand larceny in the second degree. Moreover, a New York Drug Possession Lawyer said assuming that the definition of accessorial liability contained in Penal Law could be grafted onto the elements of grand larceny in the second degree, the crime of criminal facilitation would still not qualify as a lesser included offense. As the Appellate Court recently noted in similar circumstances, under the definition of accessorial liability that one could be an accessory to grand larceny by, for example, requesting or commanding another to steal without actually providing the means or opportunity to accomplish the theft. It is thus possible to be an accessory to a crime without being a facilitator. Hence, a New York Sex Crimes Lawyer said criminal facilitation in the fourth degree is not a lesser included offense of either grand larceny in the second degree or attempted grand larceny in the second degree and the crime should not have been submitted to the jury as a lesser included offense.
However, the accused waived any objection to the error in submission by requesting the down charge but the Court of Appeals has since made clear that there is any error in the submission or consideration of lesser included offenses–including specifically the failure of the crime to meet the theoretical impossibility test that provides that it is waived by the accused man unless timely objection is made. Simply put, an error of this sort is not jurisdictional. Accordingly, the accused man has waived any objection to the submission of criminal facilitation in the fourth degree as a lesser included offense of both grand larceny and attempted grand larceny in the second degree.
A premeditated crime is far much worse than a spontaneous one. Lesser participation does not mean that you should be treated less guilty of it. If you want to convict a person who committed a crime, consult Stephen Bilkis and Associates’ NY Grand Larceny Attorney together with the New York City Criminal Lawyers.