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               ARTICLE 300--JURY TRIAL--COURT`S CHARGE AND
                          INSTRUCTIONS TO JURY
Section 300.10 Court`s charge; in general.
        300.30 Court`s charge; submission of indictment to jury;
                 definitions of terms.
        300.40 Court`s charge; submission of indictment to jury; counts
                 to be submitted.
        300.50 Court`s charge; submission of lesser included offenses.

S 300.10  Court`s charge; in general.
  1.  At the conclusion of the summations, the court must deliver a
charge to the jury.
  2.  In its charge, the court must state the fundamental legal
principles applicable to criminal cases in general.  Such principles
include, but are not limited to, the presumption of the defendant`s
innocence, the requirement that guilt be proved beyond a reasonable
doubt and that the jury may not, in determining the issue of guilt or
innocence, consider or speculate concerning matters relating to sentence
or punishment.  Upon request of a defendant who did not testify in his
own behalf, but not otherwise, the court must state that the fact that
he did not testify is not a factor from which any inference unfavorable
to the defendant may be drawn.  The court must also state the material
legal principles applicable to the particular case, and, so far as
practicable, explain the application of the law to the facts, but it
need not marshal or refer to the evidence to any greater extent than is
necessary for such explanation.
  3. Where a defendant has raised the affirmative defense of lack of
criminal responsibility by reason of mental disease or defect, as
defined in section 40.15 of the penal law, the court must, without
elaboration, instruct the jury as follows: "A jury during its
deliberations must never consider or speculate concerning matters
relating to the consequences of its verdict. However, because of the
lack of common knowledge regarding the consequences of a verdict of not
responsible by reason of mental disease or defect, I charge you that if
this verdict is rendered by you there will be hearings as to the
defendant`s present mental condition and, where appropriate, involuntary
commitment proceedings."
  4.  The court must specifically designate and submit, in accordance
with the provisions of sections 300.30 and 300.40, those counts and
offenses contained and charged in the indictment which the jury are to
consider.  Such determination must be made, and the parties informed
thereof, prior to the summations.  In its charge, the court must define
each offense so submitted and, except as otherwise expressly provided,
it must instruct the jury to render a verdict separately and
specifically upon each count submitted to it, and with respect to each
defendant if there be more than one, and must require that the verdict
upon each such count be one of the following:
  (a)  "Guilty" of the offense submitted, if there be but one; or
  (b)  Where appropriate, "guilty" of a specified one of two or more
offenses submitted under the same count in the alternative pursuant to
section 300.40; or
  (c)  "Not guilty"; or
  (d)  Where appropriate, "not responsible by reason of mental disease
or defect."
  5.  Both before and after the court`s charge, the parties may submit
requests to charge, either orally or in writing, and the court must rule
promptly upon each request.  A failure to rule upon a request is deemed
a denial thereof.
  6. In a prosecution involving a charge of enterprise corruption, as
defined in article four hundred sixty of the penal law, the court must
specifically designate and separately submit for jury consideration
those criminal acts which are contained and charged in the indictment
and which are supported by legally sufficient trial evidence. Every
criminal act which is not so supported shall be dismissed  and stricken
from the indictment. If legally sufficient trial evidence exists to
support a lesser included offense which is also a criminal act within
the meaning of subdivision one of section 460.10 of the penal law, such
lesser offense shall be substituted. Such determination must be made and
the parties informed thereof, prior to the summations. In its charge,
the court must define each criminal act so submitted and, as when it may
or must do so pursuant to sections 300.40 and 300.50 of this article,
any lesser included offense that is also a criminal act within the
meaning of subdivision one of section 460.10 of the penal law. It must
instruct the jury to render a verdict separately and specifically upon
each criminal act (and where necessary, any submitted lesser included
offense) submitted to it with respect to each defendant. It must further
explain to the jury that they may not consider a charge of enterprise
corruption against any defendant until they have separately and
unanimously agreed that the defendant has committed each of at least
three criminal acts alleged as part of the pattern of criminal activity,
including any submitted lesser included offenses.

S 300.30  Court`s charge; submission of indictment to jury; definitions
             of terms.
  The following definitions are applicable to this article:
  1.  "Submission of a count" of an indictment means submission of the
offense charged therein, or of a lesser included offense, or submission
in the alternative of both the offense charged and a lesser included
offense or offenses.  When the court "submits a count," it must, at the
least, submit the offense charged therein if such is supported by
legally sufficient trial evidence, or if it is not, the greatest lesser
included offense which is supported by legally sufficient trial
evidence.
  2.  "Consecutive counts" means two or more counts of an indictment
upon which consecutive sentences may be imposed in case of conviction
thereon.
  3.  "Concurrent counts" means two or more counts of an indictment upon
which concurrent sentences only may be imposed in case of conviction
thereon.
  4.  "Inclusory concurrent counts."  Concurrent counts are "inclusory"
when the offense charged in one is greater than any of those charged in
the others and when the latter are all lesser offenses included within
the greater.  All other kinds of concurrent counts are "non-inclusory."
  5.  "Inconsistent counts."  Two counts are "inconsistent" when guilt
of the offense charged in one necessarily negates guilt of the offense
charged in the other.

S 300.40  Court`s charge; submission of indictment to jury; counts to
             be submitted.
  The court may submit to the jury only those counts of an indictment
remaining therein at the time of its charge which are supported by
legally sufficient trial evidence, and every count not so supported
should be dismissed by a trial order of dismissal.  The court`s
determination as to which of the sufficient counts are to be submitted
must be in accordance with the following rules:
  1.  If the indictment contains but one count, the court must submit
such count.
  2.  If a multiple count indictment contains consecutive counts only,
the court must submit every count thereof.
  3. If a multiple count indictment contains concurrent counts of murder
in the first degree, the court must submit every such count.  In any
other case, if a multiple count indictment contains concurrent counts
only, the court must submit at least one such count, and may submit more
than one as follows:
  (a)  With respect to non-inclusory concurrent counts, the court may in
its discretion submit one or more or all thereof;
  (b)  With respect to inclusory concurrent counts, the court must
submit the greatest or inclusive count and may or must, under
circumstances prescribed in section 300.50, also submit, but in the
alternative only, one or more of the lesser included counts.  A verdict
of guilty upon the greatest count submitted is deemed a dismissal of
every lesser count submitted, but not an acquittal thereon.  A verdict
of guilty upon a lesser count is deemed an acquittal upon every greater
count submitted.
  4.  If a multiple count indictment contains two or more groups of
counts, with the counts within each group being concurrent as to each
other but consecutive as to those of the other group or groups, the
court must submit at least one count of each group, in the manner
prescribed in subdivision three.  If an indictment contains one or more
of such groups of concurrent counts, and also one or more other counts
each of which is consecutive as to every other count of the indictment,
the court must submit each individual consecutive count and at least one
count of each group of concurrent counts.
  5.  If an indictment contains two inconsistent counts, the court must
submit at least one thereof.  If a verdict of guilty upon either would
be supported by legally sufficient trial evidence, the court may submit
both counts in the alternative and authorize the jury to convict upon
one or the other depending upon its findings of fact.  In such case, the
court must direct the jury that if it renders a verdict of guilty upon
one such count it must render a verdict of not guilty upon the other.
If the court is satisfied that a conviction upon one such count, though
supported by legally sufficient trial evidence, would be against the
weight of the evidence while a conviction upon the other would not, it
may in its discretion submit the latter count only.
  6.  Notwithstanding any other provision of this section, the court is
not required to submit any particular count to the jury when:
  (a)  The people consent that it not be submitted; except that nothing
contained in this paragraph limits the right accorded a defendant by
section 300.50 to the submission, in certain situations, of counts
charging lesser included offenses; or
  (b)  The number of counts or the complexity of the indictment requires
selectivity of counts by the court in order to avoid placing an unduly
heavy burden upon the jury in its consideration of the case.  In such
case, the court may submit to the jury a portion of the counts which are
representative of the people`s case.
  7.  Every count not submitted to the jury is deemed to have been
dismissed by the court.  Where the court, over objection of the people,
refuses to submit a count which is consecutive as to every count
actually submitted, such count is deemed to have been dismissed by a
trial order of dismissal even though no such order was expressly made by
the court.

S 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.