Scenario 8:

Question : Defendant stands trial on a single count indictment charging with criminal sexual act in the first degree contrary to PL 130.50(1). The district attorney's case at trial is weak and prior to jury charge, the prosecutor requests that the court charge down to sexual abuse in the first degree (PL 130.65(1)) as a lesser included offense, since he believes the proof establishes "sexual contact" but not "oral sexual conduct." Defendant objects to the proposed charge. Should the court give the requested charge?

Answer :

Sexual abuse in the first degree is not a legal lesser included offense of criminal sexual act in the first degree, because "sexual contact" means intimate touching "for the purpose of gratifying sexual desire", whereas "oral sexual conduct" (formerly "deviate sexual intercourse") may occur for any purpose whatever. Accordingly, the requested charge should not be given.
GungaWeb handles the question like this:

Click on Article 130, then PL 130.50 to retrieve the charge. Scroll down to the Included Offenses function area, and click on Lesser Included, "Argument" to obtain a full Lesser Included Offense Report as follows:

Observe that the requested charge is not produced as a lesser included offense

Note that the offense that is presented, sexual misconduct, is argued to be a legal lesser included offense based on a chain of legal reasoning that details how the elements of the greater offense logically imply the elements of the lesser offense. This satisfies the legal definition of lesser included offense under New York law, which is the first test for obtaining a jury charge on a lesser offense. As a matter of law however, case law in this instance has held that sexual misconduct is never to be submitted as a lesser included count of forcible rape or criminal sexual act (formerly sodomy), because it fails the second test for such submission, namely that there is a reasonable view of the evidence that the defendant could have committed the lesser but not the greater offense. Since the elements of these two offenses are, in the courts' view, identical, proof that suffices to prove the lesser is automatically sufficient to prove the greater offense. Consequently, the jury instruction on the lesser charge is never proper.
Full details of this state of affairs can be viewed in GungaWeb by clicking "Art 130", under "Notes" to the Included Offenses area.

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