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Court Discusses Jury’s Pardon Power


Respondent was charged with and convicted of robbery of property having a value of less than $100. At trial, he requested a jury instruction on petit larceny. The court refused the request, instead instructing the jury on attempted robbery. A New York Drug Crime Lawyer said that on appeal, the fourth district held that the failure to instruct on petit larceny was prejudicial error and reversed the trial court. On rehearing, the district court adhered to its original opinion and certified the question which the Court now considers.

A New York Criminal Lawyer said the issue in this case is, if a defendant is convicted by overwhelming evidence of a greater offense, and the jury is instructed on an attempt to commit that offense, is the failure to instruct on the next lesser included offense, which carries a penalty less than the attempt, harmless error under the 1978 case?

The Court said that in the 1972 case, the petitioners, who had been convicted of rape, raised as error on appeal the trial judge’s refusal to give instructions as to certain lesser included offenses to the crime of rape. We refused to disturb the trial court’s decision and held that although it was error to refuse to instruct the jury on the lesser included offense of assault and battery, it was, nevertheless, harmless error. In the said case we noted that the jury had been instructed on assault with intent to commit rape, which is “one step” below the offense of rape. The offense of assault and battery is “two steps” removed from the crime of which petitioners were convicted. Since the jury had been given the opportunity to reduce the rape charge one step, but had convicted petitioners of the more serious charge, we found that it was harmless error to fail to give the requested charge on the offense two steps removed.

A Nassau County Drug Possession Lawyer said the 1972 case rationale was reiterated in a1978 case, where instructions had also been given on the next immediate lesser-included offense but not on an offense two steps removed. The 1978 case explained why the error was harmless as follows: If a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed) and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless. If, however, the jury only receives instructions on “A” and “C” and returns a conviction on “A”, the error cannot be harmless because it is impossible to determine whether the jury, if given the opportunity, would have “pardoned” the defendant to the extent of convicting him on “B” (although it may have been unwilling to make the two-step leap downward to “C”).

A Queens Sex Crimes Lawyer the cases establish quite clearly what action constitutes harmless error in this area. The Court must then decide in the case sub judice whether the trial judge, in giving his instructions on attempted robbery and refusing to instruct on petit larceny, skipped a step within the meaning of the rule or committed reversible error.

The state bases its argument on the premise that a “step”, within the holding of the 1978 case, is determined by an analysis of the degree of punishment. The state relies on a 1976 case, cert. denied, and contends that when a jury is given an opportunity to convict a defendant of an attempt which carries a greater penalty than the lesser included offense, the failure to instruct on the lesser included offense is harmless error. In the 1978 case, the fourth district stated: If the jury is given the opportunity of convicting the defendant of a lesser included offense which is greater than or at least equal in punishment to the attempt, failure to instruct on attempt may be harmless error.

The state’s contention is clearly the converse of what the district court stated in the 1972 case. It does not necessarily or logically follow that the converse of the statement is true. The state’s reliance on levels of punishment ignores the discrete categories of jury instructions established in a 1968 case. The said case categories operate independently from relative punishments. Under this case, attempts are placed in a category separate from necessarily included lesser offenses. Instruction is required on lesser included offenses “necessarily included in the major offense charged by the accusatory pleading.” This case requires an instruction on an attempt whenever an attempt is an offense under the law, without reference to the charge. “It is immaterial whether the accusatory pleading specifically charges an attempt.” Furthermore, the attempt charge must be given even though, in the judge’s opinion, the facts establish guilt of the crime charged rather than the attempt. It is evident from the said case that the two categories, lesser included offenses and attempts, are not interchangeable as the state argues. It is of interest to point out that the standard jury instructions and criminal rules put into effect after this case arose maintained the separation of necessarily included offenses and attempts.

The application of the “step” analysis should only be made in cases where both the instruction that was given and the omitted instruction relate to a lesser-included offense. An attempt instruction does not provide a “step” within the meaning of the 1978 case. Whether the evidence is susceptible of inference by the jury that the defendant is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury. Fundamental trial fairness requires that a defendant being tried for robbery should be permitted to have an instruction on a lesser-included offense upon timely request. Larceny is necessarily included in the crime of robbery. It is legally impossible to prove robbery without proving larceny, the difference being that robbery has the added element of “force, violence or putting in fear.” The district court correctly stated: Here, there was neither charge nor evidence of property having a value of $100 or more. Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.

The basis of this Court’s holding in the 1978 case was the desire to preserve the jury’s “pardon” power. In the case sub judice the lack of opportunity for the jury to consider both attempt and larceny along with robbery was crucial. The jury might have returned the robbery verdict simply because they believed that a larceny was consummated but robbery was a closer choice than attempted robbery or not guilty. In effect, the jury was not able to exercise its inherent “pardon” power by returning a verdict of guilty as to the next lower crime.

Accordingly, the Court responds to the certified question in the negative and approved the opinion and decision of the district court of appeal. The cause is remanded with instructions to further remand same for a new trial.

If you are involved in a crime similar in the case at bar, you need the help of a West Palm Beach Petit Larceny Attorney and/or West Palm Beach Grand Larceny Attorney in order to defend your case. Without the help of West Palm Beach Criminal Attorney or West Palm Beach Shoplifting Defense Attorney you cannot properly defend your case and might lose your right to liberty. Call us at Stephen Bilkis and Associates for free legal advice.

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