N.Y. CPL Law § 300.40 — New York Code / Act CPL / Part 2 / Title J / Article 300 / Section 300.40
Court's charge; submission of indictment to jury; counts to be submitted
Status: in_force

§ 300.40  Court's charge; submission of indictment to jury; counts to\n             be submitted.\n  The court may submit to the jury only those counts of an indictment\nremaining therein at the time of its charge which are supported by\nlegally sufficient trial evidence, and every count not so supported\nshould be dismissed by a trial order of dismissal.  The court's\ndetermination as to which of the sufficient counts are to be submitted\nmust be in accordance with the following rules:\n  1.  If the indictment contains but one count, the court must submit\nsuch count.\n  2.  If a multiple count indictment contains consecutive counts only,\nthe court must submit every count thereof.\n  3. If a multiple count indictment contains concurrent counts of murder\nin the first degree, the court must submit every such count.  In any\nother case, if a multiple count indictment contains concurrent counts\nonly, the court must submit at least one such count, and may submit more\nthan one as follows:\n  (a)  With respect to non-inclusory concurrent counts, the court may in\nits discretion submit one or more or all thereof;\n  (b)  With respect to inclusory concurrent counts, the court must\nsubmit the greatest or inclusive count and may or must, under\ncircumstances prescribed in section 300.50, also submit, but in the\nalternative only, one or more of the lesser included counts.  A verdict\nof guilty upon the greatest count submitted is deemed a dismissal of\nevery lesser count submitted, but not an acquittal thereon.  A verdict\nof guilty upon a lesser count is deemed an acquittal upon every greater\ncount submitted.\n  4.  If a multiple count indictment contains two or more groups of\ncounts, with the counts within each group being concurrent as to each\nother but consecutive as to those of the other group or groups, the\ncourt must submit at least one count of each group, in the manner\nprescribed in subdivision three.  If an indictment contains one or more\nof such groups of concurrent counts, and also one or more other counts\neach of which is consecutive as to every other count of the indictment,\nthe court must submit each individual consecutive count and at least one\ncount of each group of concurrent counts.\n  5.  If an indictment contains two inconsistent counts, the court must\nsubmit at least one thereof.  If a verdict of guilty upon either would\nbe supported by legally sufficient trial evidence, the court may submit\nboth counts in the alternative and authorize the jury to convict upon\none or the other depending upon its findings of fact.  In such case, the\ncourt must direct the jury that if it renders a verdict of guilty upon\none such count it must render a verdict of not guilty upon the other.\nIf the court is satisfied that a conviction upon one such count, though\nsupported by legally sufficient trial evidence, would be against the\nweight of the evidence while a conviction upon the other would not, it\nmay in its discretion submit the latter count only.\n  6.  Notwithstanding any other provision of this section, the court is\nnot required to submit any particular count to the jury when:\n  (a)  The people consent that it not be submitted; except that nothing\ncontained in this paragraph limits the right accorded a defendant by\nsection 300.50 to the submission, in certain situations, of counts\ncharging lesser included offenses; or\n  (b)  The number of counts or the complexity of the indictment requires\nselectivity of counts by the court in order to avoid placing an unduly\nheavy burden upon the jury in its consideration of the case.  In such\ncase, the court may submit to the jury a portion of the counts which are\nrepresentative of the people's case.\n  7.  Every count not submitted to the jury is deemed to have been\ndismissed by the court.  Where the court, over objection of the people,\nrefuses to submit a count which is consecutive as to every count\nactually submitted, such count is deemed to have been dismissed by a\ntrial order of dismissal even though no such order was expressly made by\nthe court.\n