A New York Grand larceny lawyer said that the defendant was indicted for various crimes growing out of an incident which occurred in March 1971. According to the complainant, two men assaulted him and then proceeded to take his watch and $89. The criminal defendant admitted meeting the complainant at the time and approximate location alleged by him, but related a far different version of the events. The defendant maintained that he obtained $25 from the complainant on the false representation that he had a television set which he would sell to the complainant.
At the conclusion of the testimony, defense counsel requested that the Court charge the jury with respect to the crime of petit larceny, urging that it was a lesser-included crime of count two of the indictment wherein it was alleged that the defendant had committed the crime of grand larceny in the third degree by stealing ‘from the person certain property of an aggregate value not in excess of $250’ Despite that request, counsel, nevertheless, took the position that defendant could not be convicted of petit larceny by false pretenses–the crime which defendant, in effect, admitted–since that crime was not specifically alleged in the indictment. The District Attorney, however, correctly pointed out that the Penal Law does not require that the indictment contained specific allegations concerning the manner in which the larceny was committed, and apparently took the position that the crime of petit larceny by false pretenses could be submitted to the jury. At that point the Court stated that it would charge ‘the additional lesser included count’.
Thereafter, the Court, in its charge, stated that although the defendant’s testimony concerning the event could be considered as a defense to the charges contained in the indictment, the crime of petit larceny by false pretenses was not being submitted to the jury as a lesser-included count. Therefore, the jury could either accept the complainant’s testimony and convict on the grand larceny count or could accept the defendant’s testimony and acquit. The matter, however, was further confused when subsequently, the Court, after discussing the elements of the crime of grand larceny in the third degree and noting that the difference between that crime and petit larceny was a taking from the person, stated that if the jury was not satisfied that all the elements of grand larceny in the third degree were established it could consider defendant’s guilt or innocence on the crime of petit larceny.
When the charge was concluded the defendant took an exception, stating specifically that it was his understanding that the Court had agreed to charge petit larceny by false pretenses. The Court took the position that that crime was not in issue and was not a lesser-included crime within count two of the indictment. The Court, therefore, declined to charge as requested, noting the defendant’s exception. Accordingly, if there was any doubt as to the nature of the initial request to charge, defendant’s counsel took a proper and timely exception to the charge and it is clear that the defendant wished to have the crime of petit larceny by false pretenses submitted to the jury.
The issue to be determined, therefore, is whether the crime of petit larceny, which according to the defendant was accomplished by the means of false pretenses, is a lesser-included crime within the charge of grand larceny third degree. If so, a subsidiary question arises as to whether the Court’s charge was in any event sufficient.
Criminal Procedure Law § 300.50 provides that the Court must, upon request by either party, submit ‘any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.’
In determining whether a lesser degree or included offense should be charged, the courts have looked to the facts of the case on trial and not to a ‘hypothetical alternative variety of the crime charged.’ The question to be asked in each situation is whether the lesser crime requires proof of an element which is not required to establish the greater offense.
Viewed in light of the above principles, we believe that the Trial Court was required to charge that petit larceny was a lesser-included crime within the count of the indictment alleging grand larceny third degree, and further, that the jury could have considered defendant’s claim that the crime was one of larceny by false pretenses.
Penal Law § 155.05, which defines larceny, includes, in effect, virtually every conceivable form of wrongful and intentional deprivation of property. The crime of petit larceny is accomplished merely when a person ‘steals property’. The higher degrees of larceny, in turn are defined according to the value or nature of the property taken or the manner in which the property was taken. Accordingly, as a matter of definition, every grand larceny involves the commission of the lesser crime of petit larceny.
It is argued, however, that the Trial Court was not required to submit the crime of petit larceny herein, since the defendant’s testimony concerning the commission of that crime by means of false pretenses, had no relation to the crime charged in the indictment wherein it was specifically alleged that the taking was ‘from the person’. In support of that argument, the dissenters state that ‘analysis of the allegations of the indictment show the (larceny from the person) to have been accomplished by utilization of dangerous instruments, to wit, a knife and a stick.’ But, each count in an indictment is to be regarded as a separate indictment. All that was required to establish the grand larceny charge was simply the wrongful taking of property from the person. And as previously stated, the wrongful taking of property by definition includes petit larceny.
Nor does the allegation in the indictment that the property was taken from the person limit the proof to a larceny committed only in that manner. Under Penal Law § 155.45, it is no longer necessary to include in the indictment specific allegations concerning ‘the particular way or manner in which property was stolen or the particular theory of larceny involved.’ However, where ‘it is an element of the crime charged that property was taken from the person or obtained by extortion, an indictment for larceny must so specify.’ And, although the element of extortion must not only be pleaded but must also be proven, where the larceny alleged includes the element of taking from the person, proof that defendant committed a larceny in a different manner is sufficient to support the indictment. The fact that the crime admitted to by defendant was committed in a different manner than that alleged by the People does not mean that the petit larceny was not a lesser-included crime since the manner in which the larceny is committed is evidentiary only and does not constitute an element of the crime. We therefore conclude that the Court was required to charge that petit larceny was a lesser-included crime of the second count in the indictment, albeit the manner of the commission of the crime differed from the theory of the prosecution.
The People, however, contend that the charge given by the Court was in any event, sufficient. Although at one point in the charge the Court, in general terms, instructed the jury that it could find the defendant guilty of petit larceny, that instruction was given only after the Court specifically told the jury that the crime of petit larceny by false pretenses was not being submitted and could not be considered. Since the only evidence of petit larceny came from defendant’s version of the events, it is clear that the Court’s charge was insufficient and it must be concluded that the issue was not properly presented to the jury. The jury was actually limited by the instructions to consider defendant’s story just as a defense to the charges contained in the indictment, but could not convict him of the crime to which he admitted. Additionally, since we conclude that the charge did not permit the jury to find defendant guilty of petit larceny, it is irrelevant that ultimately the jury convicted the defendant of the more serious crime.
One final point should be mentioned. The Court in its charge stated: ‘If, after carefully considering the evidence as a result of reason and judgment, and because of the evidence in the case, or lack of evidence, You feel in your hearts and conscience that this defendant is not guilty under the law as explained to you, or, if you entertain a reasonable doubt as to his guilt, then there exists a reasonable doubt, and you should give the defendant the benefit of that doubt, and acquit.’
The use of the phrase ‘hearts and conscience’, in this context has been criticized by this Court on prior occasions. In a case, it was stated in the concurring opinion as follows:’ Such instruction not only serves to confuse the jurors rather than assist them ‘in understanding the difference between a reasonable doubt and one which is based on a whim, sympathy or some other vague reason’; it is also an improper dilution of the term ‘beyond a reasonable doubt’ and, therefore, clearly prejudicial to a defendant’.
Accordingly, the judgment should be reversed on the law and a new trial ordered. Judgment, Supreme Court, New York County, rendered on May 25, 1972, reversed, on the law, and a new trial directed.
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