People v. Dorfeuille
| Decision Date | 12 January 2012 |
| Citation | 936 N.Y.S.2d 377,91 A.D.3d 1023,2012 N.Y. Slip Op. 00132 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Roody DORFEUILLE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Richard V. Manning, Parishville, for appellant.
Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: MERCURE, Acting P.J., ROSE, LAHTINEN, KAVANAGH and McCARTHY, JJ.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered July 20, 2009, upon a verdict convicting defendant of the crimes of gang assault in the first degree, gang assault in the second degree, assault in the first degree and assault in the second degree.
In an attack on the victim, defendant punched him in the chest, codefendant Darryl Tucker punched the victim in the face and codefendant Jevaughn Francis kicked the victim in the head as he fell. Defendant and Tucker continued to hit the victim while he was on the ground. During the assault, the victim was stabbed eight times. A jury found defendant and Tucker guilty of gang assault in the first and second degrees and assault in the first and second degrees, and found Francis guilty of assault in the second degree.1 County Court sentenced defendant to concurrent terms of 12 years in prison followed by five years of postrelease supervision for both gang assault in the first degree and assault in the first degree, seven years followed by five years of postrelease supervision for gang assault in the second degree, and seven years followed by three years of postrelease supervision for assault in the second degree. Defendant appeals.
County Court did not err in constructively amending the indictment. The court merely clarified some inartfully worded portions of the indictment to reflect that the codefendants aided each other; the original language stated that all three codefendants aided another person, implying that a fourth person may have been involved. Although some grand jury witnesses testified that more than three individuals attacked the victim, the People's theory was always that the three codefendants aided each other. While the People did not make a formal motion to amend and the court did not issue a formal order ( see CPL 200.70[1] ), after argument concerning the language of the indictment the court informed the parties that it intended to modify the language when reading the charges to the jury. The amendment slightly altered the facts stated in the indictment, but did not change the People's theory of the case, and defendant was not prejudiced because he could have been convicted of the crimes whether he aided a fourth person or just his codefendants ( see CPL 200.70; People v. Spratley, 144 A.D.2d 769, 771, 534 N.Y.S.2d 754 [1988], lv. denied 73 N.Y.2d 896, 538 N.Y.S.2d 809, 535 N.E.2d 1349 [1989]; see also People v. Roberts, 163 A.D.2d 690, 690, 558 N.Y.S.2d 296 [1990]; compare People v. Rivera, 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ). Thus, the constructive amendment did not constitute error.
For the reasons stated in our decision resolving Tucker's appeal ( People v. Tucker, ––– A.D.3d ––––, 936 N.Y.S.2d 386 [decided herewith] ), we dismiss the counts charging gang assault in the second degree and assault in the second degree, reduce the conviction of gang assault in the first degree to...
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