2010 New York Code
CPL - Criminal Procedure
Part 2 - THE PRINCIPAL PROCEEDINGS
Title J - PROSECUTION OF INDICTMENTS IN SUPERIOR COURTS--PLEA TO SENTENCE
Article 300 - (300.10 - 300.50) JURY TRIAL--COURT'S CHARGE AND INSTRUCTIONS TO JURY
300.40 - Court's charge; submission of indictment to jury; counts to be submitted.

§  300.40    Court's charge; submission of indictment to jury; counts to
               be submitted.
    The court may submit to the jury only those counts  of  an  indictment
  remaining  therein  at  the  time  of  its charge which are supported by
  legally sufficient trial evidence, and  every  count  not  so  supported
  should  be  dismissed  by  a  trial  order  of  dismissal.   The court's
  determination as to which of the sufficient counts are to  be  submitted
  must be in accordance with the following rules:
    1.    If  the indictment contains but one count, the court must submit
  such count.
    2.  If a multiple count indictment contains consecutive  counts  only,
  the court must submit every count thereof.
    3. If a multiple count indictment contains concurrent counts of murder
  in  the  first  degree,  the court must submit every such count.  In any
  other case, if a multiple count indictment  contains  concurrent  counts
  only, the court must submit at least one such count, and may submit more
  than one as follows:
    (a)  With respect to non-inclusory concurrent counts, the court may in
  its discretion submit one or more or all thereof;
    (b)    With  respect  to  inclusory  concurrent counts, the court must
  submit  the  greatest  or  inclusive  count  and  may  or  must,   under
  circumstances  prescribed  in  section  300.50,  also submit, but in the
  alternative only, one or more of the lesser included counts.  A  verdict
  of  guilty  upon  the  greatest count submitted is deemed a dismissal of
  every lesser count submitted, but not an acquittal thereon.   A  verdict
  of  guilty upon a lesser count is deemed an acquittal upon every greater
  count submitted.
    4.  If a multiple count indictment contains  two  or  more  groups  of
  counts,  with  the  counts within each group being concurrent as to each
  other but consecutive as to those of the  other  group  or  groups,  the
  court  must  submit  at  least  one  count  of each group, in the manner
  prescribed in subdivision three.  If an indictment contains one or  more
  of  such  groups of concurrent counts, and also one or more other counts
  each of which is consecutive as to every other count of the  indictment,
  the court must submit each individual consecutive count and at least one
  count of each group of concurrent counts.
    5.   If an indictment contains two inconsistent counts, the court must
  submit at least one thereof.  If a verdict of guilty upon  either  would
  be  supported by legally sufficient trial evidence, the court may submit
  both counts in the alternative and authorize the jury  to  convict  upon
  one or the other depending upon its findings of fact.  In such case, the
  court  must  direct the jury that if it renders a verdict of guilty upon
  one such count it must render a verdict of not guilty  upon  the  other.
  If  the court is satisfied that a conviction upon one such count, though
  supported by legally sufficient trial evidence,  would  be  against  the
  weight  of  the evidence while a conviction upon the other would not, it
  may in its discretion submit the latter count only.
    6.  Notwithstanding any other provision of this section, the court  is
  not required to submit any particular count to the jury when:
    (a)   The people consent that it not be submitted; except that nothing
  contained in this paragraph limits the right  accorded  a  defendant  by
  section  300.50  to  the  submission,  in  certain situations, of counts
  charging lesser included offenses; or
    (b)  The number of counts or the complexity of the indictment requires
  selectivity of counts by the court in order to avoid placing  an  unduly
  heavy  burden  upon  the jury in its consideration of the case.  In such
  case, the court may submit to the jury a portion of the counts which are
  representative of the people's case.

7.  Every count not submitted to the  jury  is  deemed  to  have  been
  dismissed  by the court.  Where the court, over objection of the people,
  refuses to submit a  count  which  is  consecutive  as  to  every  count
  actually  submitted,  such  count  is deemed to have been dismissed by a
  trial order of dismissal even though no such order was expressly made by
  the court.