The People move pursuant to Criminal Procedure Law section 200.70 for an order permitting amendment of count one of the instant indictment so that the words “CB” are replaced with “CB as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256” by submitting the bare affirmation of GF, dated 27 January 2006, without any Notice of Motion,
The defendant submits the response of RN, dated 11 March 2006, in opposition to the relief sought by the People and cross-moves to dismiss count one of the indictment, also without the appropriate notice of motion. Neither party has raised any procedural objection to the form of the motion papers themselves.
Accordingly, this issue will be overlooked by the Court.
The defendant is accused in this indictment with four crimes: (1) Criminal Mischief, Fourth Degree, as a Hate Crime, (2) Criminal Mischief, Fourth Degree, (3) Making Graffiti, and (4) Possession of Graffiti Instruments.
It is alleged that on12 March 2004, the defendant, a teacher at PS 256, wrote with a black marker the words “nigger”, “fuck”, and “pussi” on the walls of a female bathroom on the third floor of PS 256.
Count one of the indictment, the only count which the People seek to amend, reads as follows:
The Grand Jury of the County of Queens by this indictment, accuse the defendant of the crime of Criminal Mischief in the fourth degree as a Hate Crime committed as follows: The defendant, on or about 12 March 2004, in the County of Queens, having no right to do so nor any reasonable ground to believe she had such right, intentionally selected CB in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sex orientation of CB, regardless whether the belief or perception was correct or intentionally committed the act or acts constituting the offense in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of CB, regardless of whether the belief or perception was correct.
In open court, the People, on the record limited the statutory underpinning of this count to Penal Law section 485.05 (1)(b), eliminating the need for the language underlined in the quote shown above. As noted, the people now seek to change the words “CB” to “CB as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256”.
Section 200.70 of the Criminal Procedure Law reads as follows:
1. 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. Where the accusatory instrument is a superior court information, such an amendment may be made when it does not 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.
2. An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it; nor may an indictment or superior court information be amended for the purpose of curing: a failure thereof to charge or state an offense; or legal insufficiency of the factual allegations; or a misjoinder of offenses; or a misjoinder of defendants.
To be Continued….
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