People ex rel. Williams v. La Vallee

30 A.D.2d 1034, 294 N.Y.S.2d 824, 1968 N.Y. App. Div. LEXIS 3090

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1968
• Status: Published

Opinion

Order unanimously affirmed. Memorandum: The indictment herein, being in long form, is defective insofar as it charges murder, first degree, because omitted therefrom is the essential allegation that the act was done with a deliberate and premeditated design to effect death (Penal Law, § 1044, subd. 1) or that the act was done in a manner to bring the crime within the provisions .of subdivision 2 of the same section. Being in long form, the defect could not be corrected by amendment or the deficiency supplied by a bill of particulars or ignored (People v. Ercole, 308 N. Y. 425). Nevertheless the defect was not fatal. The misnomer in describing the offense as in the first instead of in the second degree is of no moment if the specific allegations of fact are sufficient as they are here to describe the ingredients of murder in the second degree to which crime appellant plead guilty. (People v. Oliver, 3 N Y 2d 684.) Lastly, we agree with the conclusion of County Court that the issue may not be raised by way of habeas corpus. “ The sufficiency of an indictment must be raised before judgment (e. g. People v. Parker, 8 A D 2d 863) unless the defect complained of would strip the court of jurisdiction, and such is clearly not the case here.” (People ex rel. Wysokowski v. Conboy, 19 A D 2d 663, 664, mot. for lv. to app. den. 13 N Y 2d 597.) (Appeal from order of Cayuga County Court dismissing writ of habeas corpus, following a hearing.) Present — Bastow, P. J., Williams, Del Vecchio, Marsh and Witmer, JJ.