People ex rel. Russo v. Jackson

7 A.D.2d 672, 179 N.Y.S.2d 153, 1958 N.Y. App. Div. LEXIS 4319

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1958
• Status: Published

Opinion

Appeal from an order of a Special Term, County Court, Clinton County, which dismissed a writ of habeas corpus. Appellant was indicted by the Grand Jury of Queens County on January 17, 1955 on two counts of grand larceny, alleging the date of the crimes as December 1, 1954. At the end of the trial the court dismissed the first count and granted the District Attorney’s motion over defendant’s objection to amend the date of crime charged in the second count to read January 3, 1955 instead of December 1, 1954. The Clinton County Special Term has dismissed a writ of habeas corpus. The trial court had the legal power to amend the indictment in respect of date of the crime. (Code Crim. Pro., § 293.) Any error in law or fact in granting such a motion should have been reviewed by appeal from the judgment of conviction. There is no such absence of jurisdiction on tMs record in respect of such amendment as to have permitted its review by writ of habeas- corpus. Order dismissing writ unanimously affirmed. Present — Foster, P. J., Bergan, Gibson, Herlihy and Reynolds, JJ.