2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title J - Prosecution of Indictments in Superior Courts--Plea to Sentence › Article 220 - The Plea › 220.20 - Plea; Meaning of Lesser Included Offense for Plea Purposes.

§ 220.20  Plea; meaning of lesser included offense for plea purposes.
1.    A  "lesser included offense," within the meaning of subdivisions
four and five of section 220.10 relating to  the  entry  of  a  plea  of
guilty  to  an offense of lesser grade than one charged in a count of an
indictment, means not only a "lesser included offense" as that  term  is
defined  in subdivision thirty-seven of section 1.20, but also one which
is deemed to be such pursuant to the following rules:
(a)   Where the only culpable mental  state  required  for  the  crime
charged  is  that the proscribed conduct be performed intentionally, any
lesser offense consisting of reckless or criminally  negligent,  instead
of  intentional, performance of the same conduct is deemed to constitute
a lesser included offense;
(b)   Where the only culpable mental  state  required  for  the  crime
charged  is  that  the  proscribed  conduct be performed recklessly, any
lesser offense consisting of criminally negligent, instead of  reckless,
performance  of  the  same  conduct  is  deemed  to  constitute a lesser
included offense;
(c)   Where according to the allegations  of  a  count  a  defendant's
participation  in  the  crime  charged  consisted in whole or in part of
solicitation of another person to engage in the proscribed conduct,  the
offense  of  criminal  solicitation, in any appropriate degree, is, with
respect to such  defendant,  deemed  to  constitute  a  lesser  included
offense;
(d)    Where  according  to  the  allegations of a count a defendant's
participation in the crime charged consisted in  whole  or  in  part  of
conspiratorial agreement or conduct with another person to engage in the
proscribed  conduct, the crime of conspiracy, in any appropriate degree,
is, with respect to  such  defendant,  deemed  to  constitute  a  lesser
included offense;
(e)  Where according to the allegations of a count charging a felony a
defendant's  participation  in such felony consisted in whole or in part
of providing another person with means or opportunity  for  engaging  in
the  proscribed  conduct,  the  crime  of  criminal facilitation, in any
appropriate degree, is,  with  respect  to  such  defendant,  deemed  to
constitute a lesser included offense;
(f)    Where the crime charged is assault or attempted assault, in any
degree, allegedly committed by intentionally causing  or  attempting  to
cause physical injury to a person by the immediate use of physical force
against  him,  or  where  the  crime  charged is menacing, as defined in
section 120.15 of the penal law, the offense of harassment,  as  defined
in  subdivision  one  of  section  240.25 of the penal law, is deemed to
constitute a lesser included offense;
(g)  Where the crime charged is murder in the second degree as defined
in subdivision three of section  125.25  of  the  penal  law,  allegedly
committed  in  the course of the commission or attempted commission of a
designated  one  of  the  underlying   felonies   enumerated   in   said
subdivision,  or  during  immediate  flight  therefrom,  such designated
underlying felony or attempted felony is deemed to constitute  a  lesser
included offense.  If such designated underlying felony is alleged to be
robbery,  burglary,  kidnapping,  or arson, without specification of the
degree thereof, or an attempt to commit the same, a plea of  guilty  may
be  entered  to the lowest degree thereof only, or as the case may be to
attempted commission of such felony in its  lowest  degree,  unless  the
allegations  of  the  count  clearly  indicate  the existence of all the
elements of a higher degree;
(h)   Where the  crime  charged  is  criminal  sale  of  a  controlled
substance,  any  offense  of criminal sale or possession of a controlled

substance, in any degree, is deemed  to  constitute  a  lesser  included
offense.
(i)    Where  the crime charged is criminal possession of a controlled
substance, any offense of criminal possession of a controlled substance,
in any degree, is deemed to constitute a lesser included offense.
(j) Where the offense charged is unlawful disposal of hazardous wastes
in violation of section 27-0914 of the environmental  conservation  law,
any  offense  of  unlawful disposal or possession of hazardous wastes as
set forth in sections 71-2707, 71-2709, 71-2711 and 71-2713 of such law,
in any degree, is deemed to constitute a lesser included offense;
(k) Where the offense charged  is  unlawful  possession  of  hazardous
wastes in violation of section 27-0914 of the environmental conservation
law, any offense of unlawful possession of hazardous wastes as set forth
in sections 71-2707 and 71-2709 of such law, in any degree, is deemed to
constitute a lesser included offense.
2.   An offense is deemed to be a lesser included offense with respect
to a crime charged in an  indictment,  pursuant  to  the  provisions  of
subdivision  one,  only for purposes of conviction upon a plea of guilty
and not for purposes of conviction by verdict.  For the latter  purpose,
an  offense  constitutes  a lesser included one only when it conforms to
the definition of that term contained  in  subdivision  thirty-seven  of
section 1.20.