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THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the evidence which supported the restraint was less than 12 hours:

“A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . Inasmuch as there is no dispute regarding the first prong, we turn our focus to the second. In so doing, “we must view the evidence in the light most favorable to the defendant” … . “It is only where there is no possible view of the facts by which the jury could find [the defendant guilty of] a lesser [included offense] that [a] refusal [to submit that offense] is justified” … . In light of the evidence relied upon by defendant, as summarized in our above weight of the evidence analysis, we agree with defendant that there is a reasonable view of the evidence that he committed the lesser offense by restraining the victim, but not for more than 12 hours as required to commit the greater offense. People v Akins, 2025 NY Slip Op 04122, Third Dept 7-10-25

Practice Point: Where a reasonable view of the evidence supports a lesser included offense, it is reversible error to refuse to instruct the jury on it.

 

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