People v. Mizzell

Appellate Division of the Supreme Court of New York

People v. Mizzell

197 A.D.2d 904, 602 N.Y.S.2d 261, 1993 N.Y. App. Div. LEXIS 9353

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 1993

StatusPublished

This text of 197 A.D.2d 904 (People v. Mizzell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mizzell, 197 A.D.2d 904, 602 N.Y.S.2d 261, 1993 N.Y. App. Div. LEXIS 9353 (N.Y. Ct. App. 1993).

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Opinion

—Judgment unanimously affirmed. Memorandum: County Court properly denied defendant’s request to charge attempted grand larceny in the fourth degree as a lesser included offense of grand larceny in the fourth degree. Attempted grand larceny in the fourth degree is a lesser included offense of grand larceny in the [905]*905fourth degree because it is theoretically impossible to commit the greater crime without, at the same time and by the same conduct, committing the lesser offense (see, People v Blim, 63 NY2d 718, 720; People v Davis, 176 AD2d 152, lv denied 79 NY2d 826). The trial court properly refused defendant’s requested charge, however, because under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater (People v Blim, supra). (Appeal from Judgment of Monroe County Court, Egan, J.—Grand Larceny, 4th Degree.) Present—Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.

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—Judgment unanimously affirmed. Memorandum: County Court properly denied defendant’s request to charge attempted grand larceny in the fourth degree as a lesser included offense of grand larceny in the fourth degree. Attempted grand larceny in the fourth degree is a lesser included offense of grand larceny in the [905]*905fourth degree because it is theoretically impossible to commit the greater crime without, at the same time and by the same conduct, committing the lesser offense (see, People v Blim, 63 NY2d 718, 720; People v Davis, 176 AD2d 152, lv denied 79 NY2d 826). The trial court properly refused defendant’s requested charge, however, because under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater (People v Blim, supra). (Appeal from Judgment of Monroe County Court, Egan, J.—Grand Larceny, 4th Degree.) Present—Callahan, J. P., Pine, Lawton, Doerr and Davis, JJ.

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Bluebook (online)

197 A.D.2d 904, 602 N.Y.S.2d 261, 1993 N.Y. App. Div. LEXIS 9353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mizzell-nyappdiv-1993.

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