People State New York v. Perry Johnson

[39 N.Y.2d 364 Page 366] Justice Murtagh, at the conclusion of defendant's trial, refused to charge the crime of petit larceny by false promise as a lesser included offense of the third degree grand larceny count listed in the indictment. On review, the majority of the Appellate Division, relying primarily on section 155.45 of the Penal Law, decided that it should have been charged and ordered a new trial. We hold that the Trial Justice was correct in this regard.