People v. Shannon

127 A.D.2d 863, 512 N.Y.S.2d 242, 1987 N.Y. App. Div. LEXIS 43370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Bianchi, J.), rendered May 1, 1985, convicting him of bail jumping in the first degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The amendment of the indictment in this case merely corrected an error in form and in no way changed the theory of the prosecution as reflected in the evidence before the Grand Jury (see, CPL 200.70 [1]). The defendant was clearly aware of the erroneous designation and chose, as a matter of trial tactics, to rely thereon as the basis for his trial defense. Accordingly, he was in no way prejudiced or misled. Thus, the indictment was properly amended by correcting the erroneous degree of the crime of bail jumping designated in the accusatory portion of the indictment to reflect the higher degree supported by the factual allegation of the indictment, which was controlling (see, People v Randall, 9 NY2d 413, 422; People v Hutchins, 43 AD2d 412, 414). Bracken, J. P., Brown, Rubin and Spatt, JJ., concur. [See, 129 Misc 2d 289.]