2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title J - Prosecution of Indictments in Superior Courts--Plea to Sentence › Article 300 - Jury Trial--Court's Charge and Instructions to Jury › 300.50 - Court's Charge; Submission of Lesser Included Offenses.

§ 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.
* NB Effective until September 1, 2024
* 6. For purposes of this section, the offenses of rape in  the  third
  degree as defined in the former subdivision three or subdivisions seven,
  eight  and  nine of section 130.25 of the penal law and a crime formerly
  defined in subdivision three of section 130.40 of the penal law, are not
  lesser included offenses of rape in the first degree, a  crime  formerly
  defined  in  section  130.50  of  the  penal  law, or any other offense.
  Notwithstanding the foregoing, any 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.
* NB Effective September 1, 2024