People v. Johnson

178 A.D.2d 300, 577 N.Y.S.2d 66, 1991 N.Y. App. Div. LEXIS 16565

Opinion

Judgment, Supreme Court, New York County (Howard Bell, J.), rendered October 5, 1989, which convicted defendant after a jury trial of assault in the second degree and sentenced him to an indeterminate term of imprisonment of from 2 to 6 years, unanimously affirmed.

The trial court permitted the People to amend a count in the indictment by inserting the word "serious” before the phrase "physical injury” in regard to the charge of violating Penal Law § 120.05 (4), finding that the word had been omitted because of a typographical error.

The factual allegations underlying the indictment clearly show that the People had in mind a theory that defendant recklessly caused serious physical injury; defendant was not, therefore, prejudiced by the amendment of the indictment to correct a typographical error, even though the correct Penal Law provision had been cited. (See, CPL 200.70 [1].) Concur— Sullivan, J. P., Wallach, Kupferman, Asch and Kassal, JJ.