People v. Brown

221 A.D.2d 353, 633 N.Y.S.2d 516, 1995 N.Y. App. Div. LEXIS 11647

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered April 9, 1993, convicting him of robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fourth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is modified, on the law, by reversing the conviction of robbery in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

It was error for the trial court to grant the People’s motion to amend the first count of the indictment, charging the defendant with robbery in the first degree, by deleting the words "displayed what appeared to be [a knife]” and inserting the words "used or threatened the immediate use of a dangerous instrument to wit [a knife]”. This amendment was "an impermissible substantive change in the indictment which cannot stand” (People v Chicas, 204 AD2d 476, 477; see also, People v Perez, 83 NY2d 269, modfg 191 AD2d 285).

The defendant’s remaining contentions are without merit. Sullivan, J. P., Altman, Hart and Friedmann, JJ., concur.