Home/New York Court of Appeals/People v. Oliver

People v. Oliver

148 N.E.2d 874, 3 N.Y.2d 684, 171 N.Y.S.2d 811, 1958 N.Y. LEXIS 1187
CourtNew York Court of Appeals
DecidedFebruary 27, 1958
StatusPublished
Cited by11 cases

This text of 148 N.E.2d 874 (People v. Oliver) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Oliver, 148 N.E.2d 874, 3 N.Y.2d 684, 171 N.Y.S.2d 811, 1958 N.Y. LEXIS 1187 (N.Y. 1958).

Opinion

Per Curiam.

The order of the Appellate Division granting a new trial is correct. The indictment, being in the long form, is defective insofar as it charges burglary in the first degree by omitting the essential allegation that it occurred in the nighttime (Penal Law, § 402, subd. 4), and, being in the long form, it could not be amended nor the deficiency supplied by a bill of particulars or ignored (People v. Ercole, 308 N. Y. 425). Nevertheless the indictment is not to be dismissed inasmuch as even if the offense were committed in the daytime it would be burglary in the second degree (Penal Law, § 403). The misnomer in describing the offense as in the first instead of in the second degree is of no moment if the specific allegations of fact are sufficient (People v. Valentine, 147 App. Div. 31, 34, affd. 205 N. Y. 556; People v. Miller, 143 App. Div. 251, 256, affd. 202 N. Y. 618), as they are here to describe the ingredients of burglary in the second degree.

The order appealed from is affirmed.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Order affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Gordon
16 N.E.3d 1178 (New York Court of Appeals, 2014)
People v. Rodriguez
97 A.D.3d 246 (Appellate Division of the Supreme Court of New York, 2012)
People v. Perez
631 N.E.2d 570 (New York Court of Appeals, 1994)
People v. Jackson
153 Misc. 2d 270 (New York Supreme Court, 1991)
People v. Skinner
154 A.D.2d 216 (Appellate Division of the Supreme Court of New York, 1990)
People v. Moran
123 A.D.2d 646 (Appellate Division of the Supreme Court of New York, 1986)
People v. Mackey
401 N.E.2d 398 (New York Court of Appeals, 1980)
People v. Batchelor
57 A.D.2d 1059 (Appellate Division of the Supreme Court of New York, 1977)
People v. McFarland
376 P.2d 449 (California Supreme Court, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
148 N.E.2d 874, 3 N.Y.2d 684, 171 N.Y.S.2d 811, 1958 N.Y. LEXIS 1187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-oliver-ny-1958.