Majority
p. 904The People of the State of New York, Respondent, v Clifford Mizzell, Appellant. [602 NYS2d 261]
—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
p. 905
fourth 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.
Cases cited
- People v. Blim 63 NY2d 718 at 720 p. 905