People v. Asan

These two appeals present the common question of when a Trial Judge must submit lesser degrees or included crimes to a jury.

We have repeatedly written that if, “ upon any view of the facts, a defendant could properly be found guilty of a lesser *530degree or an included crime, the trial judge must submit such lower offense.” (People v. Mussenden, 308 N. Y. 558, 561-562; cf. Code Crim. Pro. §§ 444, 445.) A classic statement of the standard to warrant a refusal to submit lesser degrees or included crimes is that “every possible hypothesis” but the higher crime be excluded. (People v. Moran, 246 N.…