| People v Lowery |
| 2015 NY Slip Op 03385 [127 AD3d 1109] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Lowery, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered March 27, 2013, convicting him of robbery in the first degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to theSupreme Court, Queens County, for a new trial.
After the close of the People's case, the defendant's attorney advised the SupremeCourt that he wanted to request a jury charge on the lesser-included offense of petitlarceny, but that the defendant did not want this lesser-included offense submitted to thejury. After determining that the defendant did not want the lesser-included offense to becharged, despite his attorney's recommendation to the contrary, the Supreme Courtdeferred to the defendant's decision, and did not submit the lesser-included offense ofpetit larceny to the jury. This was error, since the decision whether to seek a jury chargeon a lesser-included offense is a matter of strategy and tactics which is "for the attorney,not the accused, to make" (People v Colville, 20 NY3d 20, 32 [2012]).
Contrary to the People's contention, the failure to submit the lesser-included offenseto the jury constituted reversible error under the circumstances of this case. To be entitledto a charge on a lesser-included offense, a defendant must establish that (1) it wasimpossible to commit the greater crime without concomitantly committing the lesseroffense by the same conduct, and (2) there is a reasonable view of the evidence tosupport a finding that the defendant committed the lesser offense but not the greater(see CPL 300.50 [1]; People v James, 11 NY3d 886, 888 [2008]; People vVan Norstrand, 85 NY2d 131, 136 [1995]). The crime of petit larceny is alesser-included offense of robbery in the first degree (see Penal Law§§ 155.25, 160.15 [2]; People v Mitchell, 59 AD3d 739 [2009]; People v Monroe, 30 AD3d616 [2006]). Here, upon reviewing the record in the light most favorable to thedefendant (see People v Martin, 59 NY2d 704, 705 [1983]; People vJeffers, 278 AD2d 430 [2000]), we conclude that there was a reasonable view of theevidence which would support a finding that the defendant was guilty of the lesseroffense, but not the greater.
[*2] In light ofour determination, the defendant's contention that the sentence imposed was excessivehas been rendered academic.
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson,Hall and LaSalle, JJ., concur.