S 300.10 Court`s charge; in general. 1. At the conclusion of the summations, the court must deliver a charge to the jury. 2. In its charge, the court must state the fundamental legal principles applicable to criminal cases in general. Such principles include, but are not limited to, the presumption of the defendant's innocence, the requirement that guilt be proved beyond a reasonable doubt and that the jury may not, in determining the issue of guilt or innocence, consider or speculate concerning matters relating to sentence or punishment. Upon request of a defendant who did not testify in his own behalf, but not otherwise, the court must state that the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn. The court must also state the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts, but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation. 3. Where a defendant has raised the affirmative defense of lack of criminal responsibility by reason of mental disease or defect, as defined in section 40.15 of the penal law, the court must, without elaboration, instruct the jury as follows: "A jury during its deliberations must never consider or speculate concerning matters relating to the consequences of its verdict. However, because of the lack of common knowledge regarding the consequences of a verdict of not responsible by reason of mental disease or defect, I charge you that if this verdict is rendered by you there will be hearings as to the defendant's present mental condition and, where appropriate, involuntary commitment proceedings." 4. The court must specifically designate and submit, in accordance with the provisions of sections 300.30 and 300.40, those counts and offenses contained and charged in the indictment which the jury are to consider. Such determination must be made, and the parties informed thereof, prior to the summations. In its charge, the court must define each offense so submitted and, except as otherwise expressly provided, it must instruct the jury to render a verdict separately and specifically upon each count submitted to it, and with respect to each defendant if there be more than one, and must require that the verdict upon each such count be one of the following: (a) "Guilty" of the offense submitted, if there be but one; or (b) Where appropriate, "guilty" of a specified one of two or more offenses submitted under the same count in the alternative pursuant to section 300.40; or (c) "Not guilty"; or (d) Where appropriate, "not responsible by reason of mental disease or defect." 5. Both before and after the court's charge, the parties may submit requests to charge, either orally or in writing, and the court must rule promptly upon each request. A failure to rule upon a request is deemed a denial thereof. 6. In a prosecution involving a charge of enterprise corruption, as defined in article four hundred sixty of the penal law, the court must specifically designate and separately submit for jury consideration those criminal acts which are contained and charged in the indictment and which are supported by legally sufficient trial evidence. Every criminal act which is not so supported shall be dismissed and stricken from the indictment. If legally sufficient trial evidence exists to support a lesser included offense which is also a criminal act within the meaning of subdivision one of section 460.10 of the penal law, such lesser offense shall be substituted. Such determination must be made and the parties informed thereof, prior to the summations. In its charge, the court must define each criminal act so submitted and, as when it may or must do so pursuant to sections 300.40 and 300.50 of this article, any lesser included offense that is also a criminal act within the meaning of subdivision one of section 460.10 of the penal law. It must instruct the jury to render a verdict separately and specifically upon each criminal act (and where necessary, any submitted lesser included offense) submitted to it with respect to each defendant. It must further explain to the jury that they may not consider a charge of enterprise corruption against any defendant until they have separately and unanimously agreed that the defendant has committed each of at least three criminal acts alleged as part of the pattern of criminal activity, including any submitted lesser included offenses. S 300.30 Court`s charge; submission of indictment to jury; definitions of terms. The following definitions are applicable to this article: 1. "Submission of a count" of an indictment means submission of the offense charged therein, or of a lesser included offense, or submission in the alternative of both the offense charged and a lesser included offense or offenses. When the court "submits a count," it must, at the least, submit the offense charged therein if such is supported by legally sufficient trial evidence, or if it is not, the greatest lesser included offense which is supported by legally sufficient trial evidence. 2. "Consecutive counts" means two or more counts of an indictment upon which consecutive sentences may be imposed in case of conviction thereon. 3. "Concurrent counts" means two or more counts of an indictment upon which concurrent sentences only may be imposed in case of conviction thereon. 4. "Inclusory concurrent counts." Concurrent counts are "inclusory" when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater. All other kinds of concurrent counts are "non-inclusory." 5. "Inconsistent counts." Two counts are "inconsistent" when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other. S 300.40 Court`s charge; submission of indictment to jury; counts to be submitted. The court may submit to the jury only those counts of an indictment remaining therein at the time of its charge which are supported by legally sufficient trial evidence, and every count not so supported should be dismissed by a trial order of dismissal. The court`s determination as to which of the sufficient counts are to be submitted must be in accordance with the following rules: 1. If the indictment contains but one count, the court must submit such count. 2. If a multiple count indictment contains consecutive counts only, the court must submit every count thereof. 3. If a multiple count indictment contains concurrent counts of murder in the first degree, the court must submit every such count. In any other case, if a multiple count indictment contains concurrent counts only, the court must submit at least one such count, and may submit more than one as follows: (a) With respect to non-inclusory concurrent counts, the court may in its discretion submit one or more or all thereof; (b) With respect to inclusory concurrent counts, the court must submit the greatest or inclusive count and may or must, under circumstances prescribed in section 300.50, also submit, but in the alternative only, one or more of the lesser included counts. A verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted, but not an acquittal thereon. A verdict of guilty upon a lesser count is deemed an acquittal upon every greater count submitted. 4. If a multiple count indictment contains two or more groups of counts, with the counts within each group being concurrent as to each other but consecutive as to those of the other group or groups, the court must submit at least one count of each group, in the manner prescribed in subdivision three. If an indictment contains one or more of such groups of concurrent counts, and also one or more other counts each of which is consecutive as to every other count of the indictment, the court must submit each individual consecutive count and at least one count of each group of concurrent counts. 5. If an indictment contains two inconsistent counts, the court must submit at least one thereof. If a verdict of guilty upon either would be supported by legally sufficient trial evidence, the court may submit both counts in the alternative and authorize the jury to convict upon one or the other depending upon its findings of fact. In such case, the court must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other. If the court is satisfied that a conviction upon one such count, though supported by legally sufficient trial evidence, would be against the weight of the evidence while a conviction upon the other would not, it may in its discretion submit the latter count only. 6. Notwithstanding any other provision of this section, the court is not required to submit any particular count to the jury when: (a) The people consent that it not be submitted; except that nothing contained in this paragraph limits the right accorded a defendant by section 300.50 to the submission, in certain situations, of counts charging lesser included offenses; or (b) The number of counts or the complexity of the indictment requires selectivity of counts by the court in order to avoid placing an unduly heavy burden upon the jury in its consideration of the case. In such case, the court may submit to the jury a portion of the counts which are representative of the people`s case. 7. Every count not submitted to the jury is deemed to have been dismissed by the court. Where the court, over objection of the people, refuses to submit a count which is consecutive as to every count actually submitted, such count is deemed to have been dismissed by a trial order of dismissal even though no such order was expressly made by the court. S 300.50 Court`s charge; submission of lesser included offenses. 1. In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate. 2. If the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so. In the absence of such a request, the court`s failure to submit such offense does not constitute error. 3. The principles prescribed in subdivisions one and two apply equally where the lesser included offense is specifically charged in another count of the indictment. 4. Whenever the court submits two or more offenses in the alternative pursuant to this section, it must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted. 5. Where the indictment charges a crime committed by the defendant while he was under the age of sixteen but a lesser included offense would be one for which the defendant is not criminally responsible by reason of infancy, such lessor included offense may nevertheless be submitted to the jury in the same manner as an offense for which the defendant would be criminally responsible notwithstanding the fact that a verdict of guilty would not result in a criminal conviction. 6. For purposes of this section, the offenses of rape in the third degree as defined in subdivision three of section 130.25 of the penal law and criminal sexual act in the third degree as defined in subdivision three of section 130.40 of the penal law, are not lesser included offenses of rape in the first degree, criminal sexual act in the first degree or any other offense. Notwithstanding the foregoing, either such offense may be submitted as a lesser included offense of the applicable first degree offense when (i) there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater offense, and (ii) both parties consent to its submission. Top of Page
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