289 N.Y. 360, People v. Miles

Citation:289 N.Y. 360
Party Name:People v. Miles
Case Date:December 11, 1942
Court:New York Court of Appeals
 
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Page 360

289 N.Y. 360

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

MITCHELL MILES, Appellant.

New York Court of Appeal

December 11, 1942

Argued October 22, 1942.

Page 361

COUNSEL

William B. Mahoney for appellant. The trial court erred in granting the motion of the District Attorney to add a fifth count to the indictment: counsel cannot waive constitutional rights of defendant. (People v. Van Every, 222 N.Y. 74; People v. Johnson, 104 N.Y. 213; Matter of Bain, 121 U.S. 1; People v. Bromwich, 200 N.Y. 385; People v. Geyer, 196 N.Y. 364; Concemi v. People, 18 N.Y. 128; People v. Guidici, 100 N.Y. 503.)

Leo J. Hagerty, District Attorney (Maurice Frey of counsel), for respondent. The addition of the new count was proper under the circumstances. (People ex rel. Prince v. Brophy, 273 N.Y. 90.)

LEWIS, J.

The appellant is one of four defendants who were indicted by the grand jury of Erie county on four counts, the first three of which charged each defendant with having bribed three police officers on May 9, 1938.These acts, it was charged, constituted part of a common scheme and plan by the defendants to contrive, draw and assist in a lottery in violation of section 1372 of the Penal Law. The fourth count charged each of the four defendants with contriving, drawing and assisting in a lottery on or about May 3, 1938, in violation of sections 1370 and 1372 of the Penal Law.

At the close of the People's case, the District Attorney moved, under section 295-j of the Code of Criminal Procedure, to amend the indictment to conform to the proof by adding thereto a new or fifth count. Counsel for the appellant interposed no objection and suggested no doubt either as to the power of the court to grant the motion or the wisdom of the exercise of such power. On the contrary he consented to such amendment and thereupon the trial court granted the District Attorney's motion and ordered the fifth count added to the indictment. It is important to note that the added fifth count, although following generally the language of the fourth count, charged the defendants with having contrived, drawn and

Page 362

assisted in a lottery on May 9, 1938 -- a date six days subsequent to the date of the crime charged in the fourth count as returned by the grand jury.

The three defendants other than the appellant were acquitted on all five counts. The appellant was...

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