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Defendant Charged with Assault in Times Square Incident

Defendant was indicted on two counts of assault in the second degree, one count of robbery in the third degree, and one count of reckless endangerment in the first degree based on an incident early New Year’s morning 1985 near Times Square.

A New York Criminal Lawyer said it was argued that defendant removed the knapsack from the person of the unconscious woman lying on the sidewalk without the use of force–a grand larceny, not a robbery. Penal Law § 155.30(5) provides:
A person is guilty of grand larceny in the third degree when he steals property and when * * * the property * * * is taken from the person of another.

Accordingly the People requested that the court charge the jury that it could find defendant guilty of assault in the second degree under the second count of the indictment if it found that he caused physical injury to the police officer in the course of, or immediate flight from, either the felony of robbery or grand larceny, as set forth in Penal Law § 155.30(5). Defendant objected on the ground that the court was bound to the exact language of the indictment.

A New York Criminal Lawyer said the court stated that because an allegation of a specific underlying felony goes beyond the material elements of the crime of felony assault (see Section I, supra ), the People are not held to the same strict limitations as is the case when specific language in an indictment goes to a material element of the crime. (Cf. People v. Kaminski, supra.) However, under the aforesaid principle of notice of theory, a specific allegation as to an underlying felony does require some limitation. For example, the Barnes footnote, supra, held the prosecution to the general theory of larceny but not to a specific larceny statute or subdivision thereof. The People had only to prove “an intent to appropriate property.” (Id.) Similarly here had the People requested instructions that the jury could find the underlying felony to be assault or rape or sale of narcotics, this court would have sustained defendant’s objection on the grounds of change of theory resulting in a lack of the requisite notice.

But, according to the court this defendant suffered no prejudice or surprise from the Court’s instructions that the jury could consider either robbery or grand larceny in the third degree (Penal Law § 155.30[5] ) as an underlying felony. A New York Drug Possession Lawyer said a separate count of the indictment, defendant was charged with robbery in the third degree in that he “forcibly stole certain property from [the young woman] to wit, personal property.” Thus defendant was sufficiently on notice that the People intended to prove that he wrongfully took the knapsack from the person of the young woman. As in Spann, there is no doubt that the crime charged was the same criminal transaction for which defendant was indicted.

The court held that defendant was not in any way prejudiced as borne out by the fact that he took the stand to testify that he knew nothing of the alleged knapsack or its taking, only that there was a commotion on the street during which he was attacked by a man who he later learned was a police officer. Defendant would not have been any better served had the indictment specified grand larceny, as well as robbery, as the underlying felony.

Certainly the court’s charge did not alter the People’s theory. An indictment normally “provides sufficient notice of any lesser included crimes.” Here, a New York Sex Crimes Lawyer said that while grand larceny is not technically a lesser included offense of the underlying felony of robbery, under the facts and circumstances of this case, the prosecution’s theory was not altered by the court’s jury instruction. The People’s theory was larceny, robbery being a forcible larceny. Under the circumstances of this case the only difference between the two submitted underlying felonies was the element of force. Eliminating that element by submitting grand larceny does not amount to a change of theory.

Thus to the extent that it could be argued that the jury instruction was tantamount to an amendment of the indictment, it was authorized by CPL 200.70(1) since it did not change the theory of the prosecution or otherwise prejudice the defendant. Even though the People did specify the particular underlying felony in the indictment as a robbery, the facts and circumstances of this case which gave rise to the allegation of robbery also support a jury instruction as to another underlying crime, to wit, grand larceny in the third degree pursuant to Penal Law § 155.30(5). Such instruction was warranted and did not in any way prejudice defendant. This instruction requested by the People was properly submitted to the jury and accordingly defendant’s objection to the submission of that portion of the charge was overruled.

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