§ 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.
.