New York Criminal Lawyer Blog
Appellant was charged by an indictment of committing the crime of robbery. The trial court instructed the jury on robbery and on the lesser offense of attempted robbery and, in so instructing advised the jury that it could bring in one of three verdicts: 1) not guilty, 2) guilty of robbery, or 3) guilty of attempted robbery. A New York Criminal Lawyer said the appellant’s trial counsel specifically requested the trial court to instruct the jury on the lesser included offense of assault with intent to commit robbery, aggravated assault, and petit larceny, upon the theory that such offenses are within the dictates of the Supreme Court’s previous decision.
In rejecting the foregoing request, a New York Criminal Lawyer said that, the trial court observed: I find it difficult to believe that a jury could logically and legitimately determine that assault with intent to commit the crime, aggravated assault or petit larceny could in this instance, In view of the proof shown, be considered lesser offenses. Now it is the interpretation of this Court of the Brown Decisions and the Decisions that the Court, of the Supreme Court of Florida, in the Gilford Case expressly overruled those portions of those decisions wherein the Court has mandated to charge on all lesser included offenses, and left it to the point wherein Only when there was proof submitted that would enable the jury to determine guilt of a lesser offense should the Court charge on it.’
The issue in this case is whether the trial court erred in its decision.
The Court said that the views espoused by the trial judge coincided with this court’s pronouncements in its previous decisions. However, in reviewing this court’s decision in Hand, the Supreme Court, after observing that as a matter of law every robbery necessarily includes the crime of larceny, concluded that the trial court was obligated to give the requested charge on larceny. And in an obvious effort to resolve this question, the Supreme Court held: ‘Any prior appellate decisions conflicting with the principle announced herein are overruled.’
In reviewing our decision in our previous case, the Justice, speaking for the Supreme Court, set forth explicit guidelines for the bench and bar as to the giving of instructions upon lesser included offenses. One example given in that case was that in order to prove a robbery the state must necessarily prove a larceny as an essential element of the major offense. A New York Drug Possession Lawyer said the trial court expressly found that Gilford case, overruled those portions of the Supreme Court’s decisions in Brown mandating a charge on all lesser included offenses. At first blush, the trial court’s reading of Gilford was correct for there the court stated: The notion of having to charge the jury on something on which there is no proof makes a mockery of the trial, and of the result which will occur if a new trial or dismissal would necessarily follow where the verdict finds no support in the record.
But, as illustrated here, and in the recent opinion of the Supreme Court which the court reviewed upon our certification that the issues presented a question to be of great public interest, the body of the Brown decision refuses to be ‘placed at rest.’ Appellant was charged with the crime of assault with intent to commit murder in the first degree. A New York Sex Crimes Lawyer said the trial court failed to instruct the jury on the lesser included offenses of assault and battery and bare assault. He was convicted of aggravated assault. On appeal, this court, after observing that he shot the victim with a pistol and interposed a plea of self defense, held that the trial court did not err in refusing to instruct the jury on the lesser included offenses of assault and battery and bare assault. In an opinion authored by Circuit Judge the Supreme Court, in holding: ‘Just as it is legally impossible to prove a robbery without also proving a larceny, so too it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault.’, concluded that if sufficient evidence was adduced upon which to instruct the jury on the major offense of assault with intent to commit murder in the first degree, the trial judge should have instructed the jury on the necessarily included offense of bare assault. The court further held that since the accusatory pleading charged the defendant with shooting the victim and the evidence revealed that the victim was shot, it was apparent that the major crime for which the defendant was charged did include the lesser offense of assault and battery (a category (4) situation) and held that the refusal to so charge was reversible error.
In the case at bar, Appellant was charged with robbery. It is legally impossible to prove a robbery without also proving a larceny. The evidence is undisputed that not more than $80.00 was stolen. The trial court should have given Hammer’s requested instruction on petit larceny, a necessarily included offense. The indictment charged appellant with ‘by force, violence, assault or putting in fear, rob or steal’, and the evidence reflected that he pointed a .22 caliber sawed-off rifle and a .25 caliber pistol at the victim in perpetrating the robbery. The trial court, pursuant to the dictates of Brown’s category (4) and the Supreme Court’s opinion, should have given the requested aggravated assault instruction to the jury.
Accordingly, the Court held that the judgment is reversed for a new trial.
The rule is that, in order to prove a robbery the state must necessarily prove a larceny as an essential element of the major offense. If you are involved in a similar case, and larceny has not been proved, seek the assistance of a New York Petit Larceny Attorney and New York Grand Larceny Attorney in order to appeal your case for a lesser offense. At Stephen Bilkis and Associates, our Florida Criminal Attorney can competently handle your case. Call us for free consultation.