People v. Harper
| Citation | 37 N.Y.2d 96,371 N.Y.S.2d 467,332 N.E.2d 336 |
| Parties | , 332 N.E.2d 336 The PEOPLE of the State of New York, Respondent, v. Randolph HARPER, Appellant. |
| Decision Date | 12 June 1975 |
| Court | New York Court of Appeals |
Elliot Schnapp and William E. Hellerstein, New York City, for appellant.
Mario Merola, Dist. Atty. (Jane Bilus Gould, New York City, of counsel), for respondent.
We hold that if there is to be an amendment of an accusatory instrument within the scope of CPL 100.45 (subd. 3), Consol.Laws c. 11--A there must be strict compliance with the prescriptions of that section.
Defendant was charged in a felony complaint with reckless endangerment in the first degree, menacing, harassment, and possession of a weapon. Following a preliminary hearing the People moved to reduce the reckless endangerment charge from first to second degree and further moved that the weapons charge be tried as a misdemeanor. The felony complaint was accordingly converted to an information, but no alterations or revisions were made in either the accusatory or the factual part of the instrument. Prior to the commencement of trial the District Attorney additionally moved to withdraw the charges of reckless endangerment and possession of a weapon, thus leaving only the charges of menacing and harassment. As there then remained no charges above the grade of B misdemeanor, defendant, who had previously requested a jury trial, proceeded to trial before the Judge.
The original charge of reckless endangerment had been predicated on allegations that defendant had pointed an automatic pistol at police officers Goveia and Cresswell, while the menacing and harassment charges in the information were based on acts allegedly directed against one Joyce Gordon.
After the conclusion of the testimony, the Trial Judge stated his belief that in addition to the menacing count involving Joyce Gordon which had been set forth in the information, two additional counts of menacing involving the two police officers had also been at issue. Read in the light most favorable to the People, the record discloses references to an early colloquy at an off-the-record conference in which there had then been 'a stipulation at the bench' by which it was agreed in effect that the information would be amended to include two additional counts of menacing, one against each of the two police officers. In any event, the record supports the conclusion that defense counsel then (i.e., after the close of testimony) stipulated to such an amendment of the information. Defendant was then convicted of the two menacing counts against the police officers and acquitted of all other counts.
We agree with the contention now made by defendant's counsel that there was here no effective amendment of the information to include the menacing counts against the police officers. Because the trial court accordingly lacked subject matter jurisdiction over the crimes of which defendant was convicted, such convictions must be set...
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