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Court Discusses Lesser Included Offenses


A man was charged with breaking and entering with intent to commit a felony. He was convicted of the lesser included offense of breaking and entering or entering without breaking with intent to commit a misdemeanor. He appeals the judgment and sentence.

A New York Criminal Lawyer said the man recognizes that the court, when confronted with such a verdict and judgment, remanded the case to the trial court with instructions to enter judgment and sentence on the lesser of the included offenses referred to in the verdict. He requests that the Court reconsider such previous ruling. It has subsequently developed, however, that the District Court of Appeal has overruled and receded. Upon consideration of the opinion, the Court agrees with the general reasoning but go a step further. The Court of Appeal construes the crime of breaking and entering or entering without breaking as a single crime rather than two different crimes.

The information charged three elements including unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found the man guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny. These two elements constitute a crime just as surely as did the three elements charged. By all standards entering without breaking seems to meet the definition of a category necessarily included offense to breaking and entering.

A Suffolk Criminal Lawyer said the Second District Court went on to say that the problem seems to stem from the fact that both of the offenses are proscribed in the disjunctive known as “breaking and entering with intent to commit a misdemeanor.” Whoever breaks and enters, or enters without breaking, any dwelling, storehouse, building, ship, vessel, aircraft, or railroad car with intent to commit a misdemeanor shall be guilty of a felony of the third degree.

Hence, it is not a matter of greater visa-vis lesser included offenses in the sense that the lesser is considered to be an independent offense which is included within the offense defined as greater.

The past difficulty the courts have had in placing the two facets of the above quoted criminal statute in the mold of greater and lesser included offenses is that the statute in reality does not define two separate offenses. It defines only one offense which may be committed in either of two ways–by breaking and entering or by entering without breaking. As pointed out by a judge, the gravamen of the offense is unlawful entry with intent to commit a misdemeanor. It is physically impossible for an unlawful entry to be made other than by breaking or entering without breaking. It makes absolutely no difference as far as this crime is concerned whether the unlawful entry was made by one or the other of the only two possible means. A person charged with this crime knows from its definition in the statute that he must be prepared to defend against proof of either of the two means of unlawful entry. Whether the jury finds that the accused unlawfully entered by breaking or by entering without breaking or by breaking or entering without breaking, makes no difference as to the validity of the verdict, judgment and sentence. Either verdict states that crime set forth in the statute. Each of the foregoing three alternatives states one and the same crime as defined by the statute and carries the single penalty prescribed by the statute. The man, as aforesaid, was charged with breaking and entering with intent to commit grand larceny and was convicted of breaking and entering or entering without breaking with intent to commit a misdemeanor. The court finds that the criminal act for which he was convicted is a lesser included offense of the crime charged.

When we are at the receiving end of a crime, we want the person who hurt us to be charged of all offense possible. The opponent however, would do whatever it takes to lighten the crime made. If you want to make sure that you get the justice you deserve, consult a NYC Petit Larceny Lawyers or a NY Grand Larceny Attorney. Stephen Bilkis and Associates’ NYC Criminal Lawyers will make sure that your offender will get the punishment that he deserves, whether he is charged with sex crimes, drug possession or theft.

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