People v. Small

169 A.D.2d 742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1991
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Thorp, J.), rendered June 29, 1987, convicting him of robbery in the first degree (two counts), assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The record demonstrates that the indictment in this case charged the defendant and his codefendant with several offenses based on an acting in concert theory, inter alia, for their use of a loaded weapon to attack the complainant. At the trial, the prosecution presented evidence indicating that the defendant and his codefendant each used a gun in the commission of the crimes. The defendant now raises in his supplemental pro se brief that the prosecution impermissibly altered the theory of its case against him from that originally set forth in the indictment by eliciting evidence of his personal possession and use of a gun during the offenses. The contention is without merit. The reference in the indictment to the use of a gun in the commission of the offenses provided the defendant with sufficient information to apprise him of the conduct which formed the basis for the accusations against him as well as to enable him to prepare his defense (see, CPL 200.50; People v Iannone, 45 NY2d 589). Moreover, the record demonstrates that, prior to trial, the prosecution served the defendant with a voluntary disclosure form which specifically stated that each defendant used a weapon during the criminal incident. Inasmuch as the defendant was apprised of this fact, his present claim is unavailing.

Furthermore, the sentence imposed upon the defendant was not excessive given the circumstances of this case (see, People v Suitte, 90 AD2d 80). Sullivan, J. P., Fiber, Harwood and Balletta, JJ., concur.