§ 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