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The grade of the offense would have been that of petit larceny; with the amendment allowed,

A Kings Criminal Lawyer said that, the People move for an order amending the indictment pursuant to the provisions of Section 200.70 of the Criminal Procedure Law. The indictment contains three counts. The first count accuses the defendant of the crime of attempted murder, a Class B felony. The People seek to amend this count by adding the words ‘a police officer in the course of performing his official duties’ after the name of the victim. This would in effect convert the crime to a Class A felony. No amendment is sought for the other counts in the indictment.

A Kings Grand Larceny Lawyer said that, the People seek to amend the overt act numbered 1 to state that ‘the defendant on or about October 19, 1971, in the County of Kings, with intent to cause the death of a police officer in the course of performing his official duties’, instead of that ‘the defendant on or about October 19, 1971, in the County of Kings, with intent to cause the death of a police officer. The crimes charged as recited in the present indictment is a Class B felony (Penal Law 110.05(2)). The addition of the words ‘a police officer in the course of performing his official duties’ is an essential element of the crime to bring it within Penal Law 110.05(1), a Class A arson felony.

A Kings Criminal Lawyer said that, the People assert that such amendment does not change the theory or theories of the prosecution or otherwise tend to prejudice the defendant on the merits. However the defendant strenuously opposes the application claiming that to permit the proposed amendment would be highly prejudicial to him, by charging him with a crime much greater than that charged by the grand jury.

The issue in this case is whether the first count of the defendant’s indictment may be amended.

The Court in deciding the case cited the provisions of Section 200.70(1) of the CPL provides: ‘At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits. Upon permitting such an amendment, the court must, upon application of the defendant, order any adjournment of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense’.

This section restates in a large measure the provisions of former Code of Criminal Procedure Section 293. The new section makes clear that the court may order an amendment before or during a trial if the amendment relates to (1) matters of form; (2) time; (3) place; (4) names of persons and the like, and will not change the theory of the prosecution or otherwise tend to prejudice the defendant on the merits.

Amendments to an indictment which in effect change the nature or grade of the offense charged go to the substance of the indictment and cannot be made or ordered by the court. In reversing an order which permitted the amendment of an indictment of the crime charged from petit larceny to grand larceny second degree, the court in one case stated: ‘If the amendment had not been allowed, The grade of the offense would have been that of petit larceny; with the amendment allowed, the general verdict established an offense of the grade of grand larceny in the second degree; and in the court stated, and was not the purpose of the Legislature to attempt to authorize the trial court by amendment to change the substantial elements and nature of the crime charged and in effect substitute a new indictment in place of the one found by the grand jury’.

In Criminal Law & Procedure, Volume 4, page 553, section 1760, it is stated: ‘Every material fact and essential ingredient of the offense, every essential element of the offense, must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment. Whether at common law or under statute, the accusation must include a characterization of the crime and such description of the particular act alleged to have been committed by the accused as will enable him property to defend against the accusation, and the description of the offense must be sufficiently full and complete to accord to the accused his constitutional right to due process of law’.

The indictment fully complies with the above requirements in charging the defendant with material facts and essential ingredients to make count 1 a Class B felony. It does not allege the material fact and essential ingredient required to make the charge a Class A felony. To permit such amendment by the court would in effect increase the grade of the crime, and clearly prejudice the defendant.

Accordingly, the court held that the motion to amend the indictment is denied.
Amendments to an indictment which in effect change the nature or grade of the offense charged go to the substance of the indictment and cannot be made or ordered by the court.

The rule is that every material fact and essential element of the offense must be alleged with precision and certainty. If you are involved in a similar case, seek the representation of a Kings Grand Larceny Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates.

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