Appellate Division, Fourth Department
Lesser Included Offense
People v. Lawrence
Appealed from Supreme Court, Erie County
Background: The defendant was convicted after jury trial of predatory sexual assault against a child. He argued that he was deprived of due process and equal protection by being prosecuted for a higher crime (class A-II felony) rather than rape first degree (class B felony). The crimes have identical elements. The defendant also challenged his trial attorney’s failure to request the class B felony as a lesser included offense.
Ruling: The conviction is affirmed. Where the elements of two crimes overlap, the prosecutor has broad discretion in deciding which to charge. Charging the higher one does not violate equal protection. The discretion to decide what is an exceptional case is entrusted with the prosecutor, and this case is not an exceptional one.
As to the lesser included offense, where statutes contain identical language, the judge must determine whether to charge the lesser offense based on a reasonable view of the evidence, which should be granted only for unusual situations, not present here.
Kristin M. Preve for the defendant and defendant pro se; Michael J. Hillery for Erie County District Attorney’s Office