Opinion
March 13, 1972
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 25, 1969, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion.
Defendant was indicted for and convicted of grand larceny in the second degree. Although the trial court instructed the jury that they could find defendant guilty of grand larceny in the third degree, requests by defense counsel to charge the jury on petit larceny and attempted larceny were denied. In our opinion, the refusal to so charge constituted error. We find that the evidence adduced at the trial provided a basis upon which the jury could have found defendant guilty of petit larceny and not guilty of the higher degrees of larceny charged to the jury and upon which the jury could have found him guilty merely of an attempted larceny ( People v. Mussenden, 308 N.Y. 558; People v. Malave, 21 N.Y.2d 26; People v. Brady, 22 A.D.2d 568). The failure to charge on petit larceny may, in retrospect, be deemed to be harmless and immaterial, in view of the fact that the jury found defendant guilty of the higher of the two degrees of crime which were charged to the jury ( People v. Granger, 187 N.Y. 67; People v. Brown, 203 N.Y. 44). However, the failure to instruct the jury that it could find defendant guilty of an attempt may not be so characterized. The fact that the jury found defendant guilty of grand larceny in the second degree does not preclude the possibility that they might have found him guilty of an attempt if given the opportunity to do so.