New York Jury Instruction - Lesser Included Offense
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The judge will advise the jury that it is the sole judge of the facts and of the credibility (believability) of witnesses. He or she will note that the jurors are to base their conclusions on the evidence as presented in the trial, and that the opening and closing arguments of the lawyers are not evidence.
Elements Test The court will consider only the definitions of each crime, instead of the facts in the evidence or the charging document. A crime will be a lesser included offense of another crime only if the second crime includes every element of the first crime, in addition to at least one other element.
Jury instructions are instructions for jury deliberation that are written by the judge and given to the jury. At trial, jury deliberation occurs after evidence is presented and closing arguments are made.
Brief Synopsis: If the pleadings in a case allege facts supporting a lesser-included offense, the judge must give the jury instructions on lesser-included offenses and then the jury may find defendant guilty of lesser-included offense and maybe not the greater offense(s).
The greater crime cannot be proven unless all of the elements of the lesser crime are proven. For example, trespassing is a lesser included offense of the crime of burglary.
An offense is deemed to be a lesser included offense with respect to a crime charged in an indictment, pursuant to the provisions of subdivision one, only for purposes of conviction upon a plea of guilty and not for purposes of conviction by verdict.
It is not required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.
If you are not convinced beyond a reasonable doubt that the defendant is guilty of a charged crime, you must find the defendant not guilty of that crime. If you are convinced beyond a reasonable doubt that the defendant is guilty of a charged crime, you must find the defendant guilty of that crime. CPL 300.10(2).