Scenario 8:

Question : Defendant stands trial on a single count indictment charging with criminal sexual act in the first degree contrary to PL 130.50(1). The district attorney's case at trial is weak and prior to jury charge, the prosecutor requests that the court charge down to sexual abuse in the first degree (PL 130.65(1)) as a lesser included offense, since he believes the proof establishes "sexual contact" but not "oral sexual conduct." Defendant objects to the proposed charge. Should the court give the requested charge?

Answer :