People v. Floyd

115 A.D.2d 248, 496 N.Y.S.2d 167, 1985 N.Y. App. Div. LEXIS 54498

Opinion

Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s argument that the court erred in failing to charge accessorial liability (Penal Law § 20.00). The indictment, the evidence and the court’s instruction to the jury made abundantly clear that defendant was charged as a principal. In any event, if the evidence and jury instructions are to the effect that defendant is principal, that fact does not constitute a variance from an indictment charging him as an accomplice, or vice versa (see, People v Duncan, 46 NY2d 74, 79-80, cert denied 442 US 910; People v Katz, 209 NY 311, 325-326; People v Ralston, 112 AD2d 758; People v Lewis, 105 AD2d 758). All that is required of an indictment is that it provide a defendant with fair notice of the charges against him. Such notice is given by an indictment which simply charges the defendant with a specified Penal Law violation whether the prosecution’s theory is that defendant is a principal or an abettor (see, People v Liccione, 63 AD2d 305, 312-313, affd 50 NY2d 850). Defendant’s other issues are similarly lacking in merit. (Appeal from judgment of Supreme Court, Erie County, Sedita, J.—robbery, first degree, and other offenses.) Present—Callahan, J. P., Denman, Boomer, Green and Pine, JJ.