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Concurrent Inclusory Counts Dismissed Despite Lack of Preservation

The Fourth Department determined the lesser inclusory counts of vehicular manslaughter in the first degree must be dismissed, despite lack of preservation:

… [C]ounts four, five and seven must be dismissed as lesser inclusory counts of count three, vehicular manslaughter in the first degree. Initially, we note that defendant’s failure to preserve the issue for our review is of no moment because preservation is not required … . With respect to the merits, “concurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a lesser offense included within the greater” … . Thus, where, as here, “it is impossible to commit a particular crime without concomitantly committing, by the same conduct, []other offense[s] of lesser grade or degree, the latter [are], with respect to the former, . . . lesser included offense[s]” … . Because it is impossible to commit the crime of vehicular manslaughter in the first degree under Penal Law § 125.13 (4), without concomitantly committing the crime of vehicular manslaughter in the second degree under Penal Law § 125.12, or without concomitantly committing the crime of, inter alia, driving while ability impaired by drugs under Vehicle and Traffic Law § 1192 (4), the latter two crimes are inclusory concurrent counts of the former crime. We therefore modify the judgment by dismissing the three counts of the indictment charging the latter two crimes. People v Bank, 2015 NY Slip Op 04954, 4th Dept 6-12-15

 

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