People v. Taylor

43 A.D.2d 519, 349 N.Y.S.2d 74, 1973 N.Y. App. Div. LEXIS 3170

Opinion

Judgment, Supreme Court, New York County, rendered November 1, 1972, convicting the defendant of burglary in the third degree and assault in the third degree, unanimously modified, on the law, to the extent of reversing the conviction for burglary, dismissing that count of the indictment, and remanding the case for resentencing on the conviction of assault in the third degree, and otherwise affirmed. The complainant was entering the public hallway of her apartment building when she was assaulted by the defendant. The crime of burglary in the third degree is defined as entering or remaining unlawfully in a building with intent to commit a crime therein (Penal Law, § 140.20). The indictment originally recited that the crime intended to be committed was the crime of larceny. Prior to trial, the indictment was amended by striking the word larceny and substituting the word assault. The indorsementment indicates that the amendment was “ on consent.” On oral argument, the People confessed that it was error to consent to the amendment. An indictment may not be amended in a manner which changes the theory of the prosecution as reflected in the evidence before the Grand Jury which filed it (CPL 200.70, subd. 2) and accordingly reversal of the burglary conviction is mandated. Since there was no specific sentence imposed upon the defendant as to the count of assault in the third degree, the matter must be remanded for resentencing of the defendant. Concur — McGivern, J. P., Markewieh, Kupferman, Lane and Steuer, JJ.