People v. Heaton

59 A.D.2d 704, 398 N.Y.S.2d 177, 1977 N.Y. App. Div. LEXIS 13659

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1977
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 18, 1975, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. Judgment affirmed. The description of the crime alleged in the indictment as filed was erroneous. We have sent for, and have examined, the Grand Jury minutes. We find that the proof before the Grand Jury dealt with heroin, and that the Grand Jury voted an indictment to that effect. Under the circumstances, the motion of the People to amend the indictment so that it read "a quantity of heroin”, instead of "a quantity of cannabis sativa” (marijuana), was properly granted. Furthermore, under the circumstances of this case the defendant was not prejudiced or surprised by the amendment. Damiani, J. P., Shapiro, Mollen and O’Connor, JJ., concur.