§ 300.50 Court's charge; submission of lesser included offenses.\n 1. In submitting a count of an indictment to the jury, the court in\nits discretion may, in addition to submitting the greatest offense which\nit is required to submit, submit in the alternative any lesser included\noffense if there is a reasonable view of the evidence which would\nsupport a finding that the defendant committed such lesser offense but\ndid not commit the greater. If there is no reasonable view of the\nevidence which would support such a finding, the court may not submit\nsuch lesser offense. Any error respecting such submission, however, is\nwaived by the defendant unless he objects thereto before the jury\nretires to deliberate.\n 2. If the court is authorized by subdivision one to submit a lesser\nincluded offense and is requested by either party to do so, it must do\nso. In the absence of such a request, the court's failure to submit such\noffense does not constitute error.\n 3. The principles prescribed in subdivisions one and two apply equally\nwhere the lesser included offense is specifically charged in another\ncount of the indictment.\n 4. Whenever the court submits two or more offenses in the alternative\npursuant to this section, it must instruct the jury that it may render a\nverdict of guilty with respect to any one of such offenses, depending\nupon its findings of fact, but that it may not render a verdict of\nguilty with respect to more than one. A verdict of guilty of any such\noffense is not deemed an acquittal of any lesser offense submitted, but\nis deemed an acquittal of every greater offense submitted.\n 5. Where the indictment charges a crime committed by the defendant\nwhile he was under the age of sixteen but a lesser included offense\nwould be one for which the defendant is not criminally responsible by\nreason of infancy, such lessor included offense may nevertheless be\nsubmitted to the jury in the same manner as an offense for which the\ndefendant would be criminally responsible notwithstanding the fact that\na verdict of guilty would not result in a criminal conviction.\n 6. For purposes of this section, the offenses of rape in the third\ndegree as defined in the former subdivision three or subdivisions seven,\neight and nine of section 130.25 of the penal law and a crime formerly\ndefined in subdivision three of section 130.40 of the penal law, are not\nlesser included offenses of rape in the first degree, a crime formerly\ndefined in section 130.50 of the penal law, or any other offense.\nNotwithstanding the foregoing, any such offense may be submitted as a\nlesser included offense of the applicable first degree offense when (i)\nthere is a reasonable view of the evidence which would support a finding\nthat the defendant committed such lesser offense but did not commit the\ngreater offense, and (ii) both parties consent to its submission.\n
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