N.Y. Criminal Procedure Law § 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.