MODEL PENAL CODE ANNOTATED

The PEOPLE of the State of New York, Respondent,
v.
Scott M. BOICE, Appellant
Supreme Court, Appellate Division,
Third Department
89 A.D.2d 33 (1982)


 MAHONEY, Presiding Justice.

 Shortly after 11:00 P.M. on July 4, 1979, Elizabeth Crosby, a pedestrian, was struck by a motorcycle driven by defendant.  Miss Crosby died as a result of injuries sustained in the accident.  The only person who witnessed the accident other than the deceased and defendant was Eileen Kirker, who was a passenger on defendant's motorcycle.  A two-count indictment was handed down charging defendant with criminally negligent homicide (Penal Law, § 125.10) and driving while intoxicated (Vehicle and Traffic Law, § 1192, subd. 3). Following a jury trial in which the defense did not call any witnesses, defendant was found guilty of criminally negligent homicide, not guilty of driving while intoxicated, and guilty of the lesser included offense of driving while ability is impaired (Vehicle and Traffic Law, § 1192, subd. 1). Defendant was given a sentence of zero to four years of imprisonment for the criminally negligent homicide conviction and an unconditional discharge on the traffic infraction.

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 . . . .  The trial court . . . correctly refused defense counsel's request to charge the crime of reckless driving (Vehicle and Traffic Law, § 1190[now § 1212]) as a lesser included offense of the criminally negligent homicide count of the indictment.  The culpable mental state required for the crime of reckless driving is higher than that needed to commit the crime of criminally negligent homicide (see Penal Law, § 15.05, subds. 3, 4;  People v. Montanez, 41 N.Y.2d 53, 56, 390 N.Y.S.2d 861, 359 N.E.2d 371;  People v. Lamphear, 35 A.D.2d 305, 307, 316 N.Y.S.2d 113).  As such, reckless driving can never be a lesser included offense of criminally negligent homicide since it is theoretically possible to commit the [p. 36] greater crime without concomitantly, by the same conduct, committing the lesser offense (see People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376;  People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146).

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 The judgment and order should be affirmed.

 SWEENEY, KANE, WEISS and LEVINE, JJ., concur.