People v. Bingham
Decision Date | 08 July 1999 |
Citation | 692 N.Y.S.2d 823,263 A.D.2d 611 |
Parties | The PEOPLE of the State of New York, Respondent, v. Kenneth BINGHAM, Appellant. |
Court | New York Supreme Court — Appellate Division |
Kenneth Bingham, Comstock, appellant in person and Susan B. Marhoffer, Ridgefield, for appellant.
Stephen F. Lungen, District Attorney (Stacey Bresky of counsel), Monticello, for respondent.
Before: MERCURE, J.P., CREW III, YESAWICH JR. and GRAFFEO, JJ.
YESAWICH JR., J.
Appeals (1) from a judgment of the County Court of Sullivan County (La Buda, J.), rendered June 3, 1997, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree (two counts) and criminal possession of stolen property in the fourth degree, and (2) by permission, from an order of said court, entered July 28, 1998, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
After observing defendant brandishing a semiautomatic pistol and stating that he would not be taken alive, Kathleen Denman, defendant's sister, fearing for her own safety, notified the State Police. They investigated the matter and, with Denman's assistance, apprehended defendant. At the conclusion of his jury trial, defendant was convicted of two counts of criminal possession of a weapon in the third degree and one count of criminal possession of stolen property in the fourth degree. Sentenced as a persistent felony offender to concurrent indeterminate terms of imprisonment of 15 years to life on each of the three counts of the indictment, defendant appeals.
There is merit to defendant's pro se argument that counts one and two of the indictment were defective. It is bright line law that if the offense charged has an exception contained within the statute, the indictment must contain an allegation that defendant's conduct does not come within the reach of the exception (see, People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312; People v. Best, 132 A.D.2d 773, 774-775, 517 N.Y.S.2d 582). Count one of the indictment charges that defendant violated Penal Law § 265.02(4), which provides that: Inasmuch as the home or business exception is not alleged, this count is jurisdictionally defective and must be dismissed (see, People v. Best, supra, at 775, 517 N.Y.S.2d 582).
There is also force to defendant's argument that the indictment was unlawfully amended. The second count accuses defendant of criminal possession of a weapon in the third degree (see, Penal Law § 265.02 ), a felony, but the statutory reference is to Penal Law § 265.01(1), criminal possession of a weapon in the fourth degree, a misdemeanor. At trial, County Court granted the People's motion to amend that part of count two to allege Penal Law § 265.02(1), and denied defendant's motion to strike that count. This was error, for although CPL 200.70(1) permits amendment of an indictment with respect to form, time, place, names of person and the like, here the amendment effected an impermissible substantive change in that it added a new count, a felony, and changed the theory of the prosecution (see, People v. Perez, 83 N.Y.2d 269, 274, 609 N.Y.S.2d 564, 631 N.E.2d 570; see also, People v. Green, 250 A.D.2d 143, 145, 683 N.Y.S.2d 597, lv. denied 93 N.Y.2d 873, 689 N.Y.S.2d 435, 711 N.E.2d 649). Accordingly, count two must also be dismissed.
We reject defendant's claim, however, that his warrantless arrest was not supported by probable cause. Hearsay information supplied by an identified citizen and derived from personal...
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