People v. Ennis

144 A.D.2d 579, 535 N.Y.S.2d 968, 1988 N.Y. App. Div. LEXIS 11912

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered December 9, 1975, convicting him of attempted escape in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The amendment of the indictment in this case merely corrected an error in form and did not change the theory of the prosecution as reflected in the evidence before the Grand Jury (see, CPL 200.70 [1]; People v Shannon, 127 AD2d 863, Iv denied 69 NY2d 1009). In any event, escape in the third degree is a lesser included offense of escape in the second degree as it would be impossible to commit escape in the second degree without concomitantly committing escape in the third degree (see, Penal Law §§ 205.05, 205.10). A reasonable view of the evidence in this case supported the finding that the defendant had committed the lesser but not the greater offense, and the court properly submitted to the jury the reduced charge of escape in the third degree (see, People v Glover, 57 NY2d 61; People v Shannon, supra).

We have examined the defendant’s remaining contention and find it to be without merit. Bracken, J. P., Kunzeman, Weinstein and Eiber, JJ., concur.