CRIMINAL POSSESSION OF STOLEN PROPERTY FOURTH AND FIFTH DEGREE ARE LESSER INCLUDED OFFENSES OF CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE; UNAUTHORIZED USE OF A VEHICLE, HOWEVER, IS NOT BECAUSE THE CRIMINAL POSSESSION STATUTE DOES NOT REQUIRE POSSESSION OF A VEHICLE (FIRST DEPT).

The First Department, in this juvenile delinquency proceeding, determined the criminal possession of stolen property fourth and fifth degree convictions should have been vacated as lesser included offenses of criminal possession of stolen property third degree. The court noted that unauthorized use of a vehicle is not a lesser included offense of criminal possession of stolen property because the criminal-possession statute does not require possession of a motor vehicle:

“When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense'” (CPL 1.20[37]). However, appellant’s argument that unauthorized use of a vehicle is a lesser included offense of criminal possession of stolen property is incorrect. It is possible to criminally possess stolen property without also committing, by the same conduct, the crime of unauthorized use of a vehicle, because the criminal possession statute does not require possession of a motor vehicle as the other statute does … . Matter of D.P. 2025 NY Slip Op 02132 First Dept 4-10-25

Practice Point: Consult this decision for some insight into what is, and what is not, a lesser included offense.​