The People of the State of New York v. Gerard Mussenden

Summary

The Court affirmed the conviction for attempted robbery, holding that the trial judge was correct in refusing to submit the counts of attempted grand larceny and assault with intent to commit robbery and larceny because those offenses are not lesser included crimes of the charged offense and there was no evidentiary basis to differentiate them. The Court explained that a lesser offense must be submitted only when the evidence could support a verdict of innocence on the higher charge and guilt on the lower. The dissent argued that the assault and larceny charges were lesser included offenses and that the refusal to submit them was reversible error.