People v. Green

• Decision Date: 24 December 1998
• Citation: 683 N.Y.S.2d 597,93 N.Y.2d 873,250 A.D.2d 143
• Parties: , 1998 N.Y. Slip Op. 11,386 The PEOPLE of the State of New York, Respondent, v. Marcus GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 597

683 N.Y.S.2d 597

250 A.D.2d 143, 1998 N.Y. Slip Op. 11,386

The PEOPLE of the State of New York, Respondent, v. Marcus GREEN, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 24, 1998.

Stephen G. Schick, Legal Aid Bureau, Monticello, for appellant.

Stephen F. Lungen, District Attorney (Thomas J. Cawley of counsel), Monticello, for respondent.

Before: CARDONA, P.J., MIKOLL, CREW, WHITE and YESAWICH, JJ.

WHITE, J.

Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered December 2, 1997, upon a verdict convicting defendant of the crimes of sexual abuse in the first degree (three counts), attempted sodomy in the first degree (two counts), sodomy in the first degree (two counts), course of sexual conduct against a child in the second degree (two counts), endangering the welfare of a child (three counts) and sexual abuse in the second degree.

On this appeal, defendant has illuminated several purported procedural errors committed during trial which he claims taint his conviction of several sex-related crimes involving young boys. For the reasons that follow, we find that one of defendant's contentions has merit while the rest do not.

The first count of the indictment charged defendant with committing the crime of course of sexual conduct against a child in the second degree between January 1, 1993 through June 30, 1993. The indictment's third count charged that defendant committed the same crime between July 1, 1993 through January 31, 1994. Predicated upon the fact that Penal Law § 130.80 did not become effective until August 1, 1996 and was applicable only to offenses occurring on or after that date (L 1996, ch 122, § 7), defendant moved to dismiss these counts. The People responded by cross-moving to amend the subject counts to charge the crime of sexual abuse in the first degree (see, CPL 200.70). County Court granted the cross motion, reasoning that the amendments did not change the theory of the case and were consistent with the proof submitted to the Grand Jury.

Under CPL 200.70(1), amendments pertaining to matters of form, time, place names of persons and the like which do not change the theory of the prosecution as reflected in the evidence before the Grand Jury are allowed. The statute, however, does not allow the trial court to sanction an amendment that changes the substantial elements and nature of the crime charged, thereby effectively adding an entirely new count to the indictment (see, People v. Perez, 83 N.Y.2d 269, 274, 609 N.Y.S.2d 564, 631 N.E.2d 570). To illustrate, where the Grand Jury voted to indict the defendant on the charge of felony murder but, due to a clerical error, the indictment did not include such charge, an amendment to add it was not permitted as it was deemed a change in substance, rather than form, as it added an entirely new count to the indictment (see, id., at 276, 609 N.Y.S.2d 564, 631 N.E.2d 570; see also, People v. Chicas, 204 A.D.2d 476, 477, 611 N.Y.S.2d 873, lv denied 84 N.Y.2d 906, 621 N.Y.S.2d 523, 645 N.E.2d 1223). Likewise, an amendment modifying the charge from murder in the second degree to the lesser included crime of manslaughter in the first degree after acquittal on the murder charge was precluded, as it changed the theory of the prosecution (see, People v. Lee, 100 A.D.2d 357, 358, 474 N.Y.S.2d 308). On the other hand, motions to amend the indictment to read "a quantity of heroin" instead of "a quantity of cocaine" and to change the date of the indictment have been granted (see, People v. Acevedo, 215 A.D.2d 115, 116, 626 N.Y.S.2d 89, lv denied 85 N.Y.2d 969, 629 N.Y.S.2d 729, 653 N.E.2d 625; People v. Bell, 206 A.D.2d 686, 688, 614 N.Y.S.2d 790, lv denied 84 N.Y.2d 866, 618 N.Y.S.2d 11, 642 N.E.2d 330).

Guided by these precedents, we conclude that the amendments permitted here are not authorized by CPL 200.70 since they resulted in an impermissible substantive change in the indictment by adding new counts that changed the theory of the prosecution. Moreover, it does not appear that the new counts were presented to or voted on by the Grand Jury. Accordingly, we shall vacate defendant's conviction of the crime of sexual abuse in the first degree under counts one and three of the amended indictment.

Counts seven and eight of the indictment charged defendant with having committed the crime of sodomy in the first degree "during the period August 1, 1996 through May 31, 1997". Finding this 10-month time period excessive, County Court dismissed these counts. Upon reargument, it reinstated them upon the People's representation that the crimes occurred between August 1, 1996 and December 31, 1996. Defendant maintains that County Court should have adhered to its original decision as the People acted in bad faith and without due diligence in ascertaining the dates and times of the crimes (see, People v. Morris, 61 N.Y.2d 290, 296, 473 N.Y.S.2d 769, 461 N.E.2d 1256). Whether the People did so depends upon such factors as the age and intelligence of the victim, the nature of the offense or offenses, including whether they are likely to be discovered immediately, and whether there is a criminal pattern and all other surrounding circumstances (see, People v. Watt, 81 N.Y.2d 772, 774, 593 N.Y.S.2d 782, 609 N.E.2d 135).

In this case, the victim was 10 years old at the time the crimes were committed. The surrounding circumstances include the fact that the crimes were not easily discoverable as they were committed when the victim was...