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 › 300.40 - Court's Charge; Submission of Indictment to Jury; Counts to Be Submitted.

§  300.40    Court's charge; submission of indictment to jury; counts to
be submitted.
The court may submit to the jury only those counts  of  an  indictment
remaining  therein  at  the  time  of  its charge which are supported by
legally sufficient trial evidence, and  every  count  not  so  supported
should  be  dismissed  by  a  trial  order  of  dismissal.   The court's
determination as to which of the sufficient counts are to  be  submitted
must be in accordance with the following rules:
1.    If  the indictment contains but one count, the court must submit
such count.
2.  If a multiple count indictment contains consecutive  counts  only,
the court must submit every count thereof.
3. If a multiple count indictment contains concurrent counts of murder
in  the  first  degree,  the court must submit every such count.  In any
other case, if a multiple count indictment  contains  concurrent  counts
only, the court must submit at least one such count, and may submit more
than one as follows:
(a)  With respect to non-inclusory concurrent counts, the court may in
its discretion submit one or more or all thereof;
(b)    With  respect  to  inclusory  concurrent counts, the court must
submit  the  greatest  or  inclusive  count  and  may  or  must,   under
circumstances  prescribed  in  section  300.50,  also submit, but in the
alternative only, one or more of the lesser included counts.  A  verdict
of  guilty  upon  the  greatest count submitted is deemed a dismissal of
every lesser count submitted, but not an acquittal thereon.   A  verdict
of  guilty upon a lesser count is deemed an acquittal upon every greater
count submitted.
4.  If a multiple count indictment contains  two  or  more  groups  of
counts,  with  the  counts within each group being concurrent as to each
other but consecutive as to those of the  other  group  or  groups,  the
court  must  submit  at  least  one  count  of each group, in the manner
prescribed in subdivision three.  If an indictment contains one or  more
of  such  groups of concurrent counts, and also one or more other counts
each of which is consecutive as to every other count of the  indictment,
the court must submit each individual consecutive count and at least one
count of each group of concurrent counts.
5.   If an indictment contains two inconsistent counts, the court must
submit at least one thereof.  If a verdict of guilty upon  either  would
be  supported by legally sufficient trial evidence, the court may submit
both counts in the alternative and authorize the jury  to  convict  upon
one or the other depending upon its findings of fact.  In such case, the
court  must  direct the jury that if it renders a verdict of guilty upon
one such count it must render a verdict of not guilty  upon  the  other.
If  the court is satisfied that a conviction upon one such count, though
supported by legally sufficient trial evidence,  would  be  against  the
weight  of  the evidence while a conviction upon the other would not, it
may in its discretion submit the latter count only.
6.  Notwithstanding any other provision of this section, the court  is
not required to submit any particular count to the jury when:
(a)   The people consent that it not be submitted; except that nothing
contained in this paragraph limits the right  accorded  a  defendant  by
section  300.50  to  the  submission,  in  certain situations, of counts
charging lesser included offenses; or
(b)  The number of counts or the complexity of the indictment requires
selectivity of counts by the court in order to avoid placing  an  unduly
heavy  burden  upon  the jury in its consideration of the case.  In such
case, the court may submit to the jury a portion of the counts which are
representative of the people's case.
7.  Every count not submitted to the  jury  is  deemed  to  have  been
dismissed  by the court.  Where the court, over objection of the people,
refuses to submit a  count  which  is  consecutive  as  to  every  count
actually  submitted,  such  count  is deemed to have been dismissed by a
trial order of dismissal even though no such order was expressly made by
the court.