You are here: / / DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT...
, ,

DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that defense counsel was ineffective for failing to request a jury instruction on petit larceny as a lesser included offense of robbery. The defense theory was that defendant did not use violence to take $20.00 from the victim but rather used trickery, claiming the victim had broken defendant’s liquor bottle. Defense counsel requested a jury charge on fraudulent accosting, which is not a lesser included offense of robbery:

… [P]etit larceny, which is defined as “steal[ing] property,” qualifies in the abstract as a lesser included offense of robbery in the third degree, which is defined as “forcibly steal[ing] property” … . There is no separate crime of petit larceny “by false pretenses,” and the fact that a nonforcible taking is committed by fraud does not disqualify it as a lesser included offense of robbery.

It is clear that defense counsel’s failure to seek a petit larceny charge was not strategic. The defense strategy was to concede that a nonforcible theft occurred and seek a misdemeanor conviction. There is no merit to the People’s suggestion that counsel may have had a strategic reason for requesting fraudulent accosting but not petit larceny.

We also find that counsel’s failure to request a petit larceny charge was prejudicial. There was plainly a reasonable view of the evidence to support petit larceny. Furthermore, the evidence that the theft was forcible rather than a scam was not so overwhelming as to render a request for petit larceny futile. The victims were tourists who returned to their home country and did not testify, and the sole eyewitness’s ability to establish the element of force was in question. People v Jones, 2018 NY Slip Op 08356, First Dept 12-4-18

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/INEFFECTIVE ASSISTANCE  (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, LESSER INCLUDED OFFENSES, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/LESSER INCLUDED OFFENSES (DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/ROBBERY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))/PETIT LARCENY (LESSER INCLUDED OFFENSE, DEFENSE COUNSEL’S FAILURE TO REQUEST A JURY INSTRUCTION ON THE CORRECT LESSER INCLUDED OFFENSE CONSTITUTED INEFFECTIVE ASSISTANCE, PETIT LARCENY IS A LESSER INCLUDED OFFENSE OF ROBBERY THIRD, NEW TRIAL ORDERED (FIRST DEPT))

You might also like
PLAINTIFF SUFFICIENTLY ALLEGED CAUSES OF ACTION FOR EMPLOYMENT DISMCRIMINATION BASED ON NATIONAL ORIGIN (YEMENI), HOSTILE WORK ENVIRONMENT, AND RETALIATION (FIRST DEPT).
VIDEOTAPED INTERVIEWS OF RESPONDENT FATHER’S CHILDREN LED TO CRIMINAL SEXUAL ABUSE CHARGES AGAINST FATHER WHICH WERE DISMISSED BECAUSE OF A LACK OF WITNESS COOPERATION; THE VIDEOTAPED INTERVIEWS ARE NOT SUBJECT TO THE SEALING REQUIREMENT IN THE CRIMINAL PROCEDURE LAW AND CAN BE USED IN A FAMILY COURT PROCEEDING ALLEGING SEXUAL ABUSE BY FATHER (FIRST DEPT).
IN 2011 PLAINTIFF WITHDREW THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT WITHOUT PREJUDICE AND SUBSEQUENTLY ENGAGED IN SETTLEMENT NEGOTIATIONS FOR YEARS; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED AND TIME-BARRED (FIRST DEPT).
Fraud Cause of Action Against Merrill Lynch Re: Credit Default Obligations Sufficiently Pled/Disclaimers and Disclosures Did Not Preclude Claim of Fraud
RARE CASE IN WHICH A SPECIAL RELATIONSHIP BETWEEN THE PLAINTIFF AND THE CITY MAY RENDER THE CITY LIABLE FOR A DELAYED RESPONSE TO A 911 CALL; BECAUSE THE DELAY MAY NOT HAVE BEEN THE RESULT OF A DELIBERATE EXERCISE OF DISCRETION, THE DOCTRINE OF GOVERNMENTAL IMMUNITY MAY NOT APPLY (FIRST DEPT).
IN THIS DESIGN DEFECT PRODUCTS LIABILITY CASE, THE LOSS OF THE SPECIFIC PRODUCT WHICH CAUSED THE INJURY DID NOT PREVENT DEFENDANT-MANUFACTURER FROM PRESENTING A DEFENSE; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON SPOLIATION GROUNDS (FIRST DEPT).
THE FACT THAT THE POLICE WERE AWARE THE VAN THEY STOPPED HAD REPORTEDLY BEEN INVOLVED IN TWO PRIOR INCIDENTS—(1) A ROAD RAGE SHOOTING AND (2) NEARLY RUNNING OVER A TRAFFIC AGENT ABOUT TO ISSUE A PARKING TICKET—PROVIDED REASONABLE SUSPICION SUPPORTING THE LEVEL THREE TRAFFIC STOP, DESPITE THE FACT THE POLICE DID NOT KNOW WHO WAS DRIVING THE VAN DURING THE PRIOR INCIDENTS (FIRST DEPT). ​
CONFLICTING EVIDENCE OF EXISTENCE OF PUDDLE CREATED A CREDIBILITY ISSUE IN THIS SLIP AND FALL CASE WHICH COULD NOT BE RESOLVED WITHOUT TRIAL.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

28 MONTH DELAY DID NOT DEPRIVE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY... SUPREME COURT PROPERLY RELIED ON THE RESULTS OF A FRYE HEARING IN A PRIOR TRIAL...