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CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

The Second Department determined the inclusory concurrent count must be dismissed despite the failure to request that it be presented to the jury in the alternative:

… [U]nder the facts of this case, the defendant could not have committed the crime of criminal contempt in the first degree as charged in count 10 of the indictment (Penal Law § 215.51[b][i]) without also having committed the crime of criminal contempt in the second degree as charged in count 11 of the indictment (Penal Law § 215.50[3]). As these counts were “inclusory concurrent counts” as defined by CPL 300.30(4), a verdict of guilty upon the greater is deemed a dismissal of every lesser (see CPL 300.40[3][b]). Thus, although the defendant did not request that the subject counts be charged in the alternative, the conviction of the lesser count must be dismissed … . People v Bentley, 2020 NY Slip Op 04753, Second Dept 8-26-20

 

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