In determining whether a crime is a lesser included offense, it is "the particular facts of [the] case on which we focus rather than merely superimposing the ’impossibility’ formula of lesser included offense upon the abstract statutory language” (People v Stanfield, 36 NY2d 467, 472) and as this court has held, in enacting CPL 1.20 (subd 37), the "Legislature meant an impossibility under the facts of the case on trial, not under some hypothetical alternative variety of the crime charged” (People v Hayes, 43 AD2d 99, 101, affd 35 NY2d 907). Under that test, I believe the trial court properly charged that giving an unlawful gratuity (Penal Law, § 200.30) was a lesser included offense of bribery, second degree (Penal Law, § 200.00).
The majority hold that the two crimes are mutually exclusive and that the same conduct cannot possibly constitute both. Bribery does not require payment before the official conduct, however, but only an agreement to pay and, where an agreement is made before the public official acts or refrains from acting and the payment is made after the fact, the same conduct may constitute both bribery, second degree and the giving of an unlawful gratuity. The payment of an official after he acts, as this indictment charges in the bribery count, may be bribery but it may also constitute giving an unlawful gratuity since all of the elements of that crime are present. Indeed, under the facts here, it was impossible for defendant to have committed the crime of bribery without also having committed the crime of giving an unlawful gratuity. It was proved that Mossman arrested Anderson for theft of services and misuse of credit cards; defendant thereafter approached Mossman and stated that if Mossman was willing to go along with helping him do something for Anderson, Mossman would get a suit of clothes; and following the disposition of the charges against Anderson, defendant gave Mossman $100. All of the elements of bribery, second degree, are present: (1) an offer to confer a benefit upon a public servant and, (2) an understanding that such public servant’s action as a public servant would be influenced by the benefit. Furthermore, all of the elements of giving of an unlawful gratuity are present: (1) knowingly conferring a benefit upon a public servant, (2) for having engaged in official conduct which he was required *485to perform and (3) for which he was not entitled to any special or additional compensation. It is true the two crimes differ in that bribery involves conduct before the action of a public official whereas giving an unlawful gratuity involves conduct .after the action of a public official. But even though the two offenses differ in terms of time, the same conduct may constitute a violation of both.
The statute also uses different terminology in defining the offenses but the fact that the terminology differs does not require a finding of additional elements in order to establish the lesser crime and the use of "knowingly” contained in section 200.30 does not distinguish the two offenses. An offer to confer a benefit upon an agreement or understanding about the offer as required for the offense of bribery would necessarily mean that the offer was made knowingly as required for the offense of giving an unlawful gratuity. There cannot be an agreement or understanding without the person acting knowingly or according to the definition of "knowingly” in subdivision 2 of section 15.05 of the Penal Law, i.e., that the person is "aware” that his conduct is of a certain nature or that certain circumstances exist. The offense of giving an unlawful gratuity was a lesser included offense of the bribery charged in this indictment and the indictment should not be dismissed. However because of the court’s error in advising the parties of its intention to charge down to giving an unlawful gratuity, the judgment should be reversed and a new trial granted.
Marsh, P. J., and Goldman, J., concur with Witmer, J.; Moule and Simons, JJ., dissent in part and vote to reverse the judgment and grant a new trial in an opinion by Simons, J.
Judgment reversed, on the law, and indictment dismissed.