People v. Jackson

• Decision Date: 02 December 1991
• Citation: 582 N.Y.S.2d 336,153 Misc.2d 270
• Parties: The PEOPLE of the State of New York v. Ruby JACKSON, Defendant.
• Court: New York Supreme Court

Page 336

582 N.Y.S.2d 336

153 Misc.2d 270

The PEOPLE of the State of New York v. Ruby JACKSON, Defendant.

Supreme Court, Trial Term Bronx County, Part 53.

Dec. 2, 1991.

Robert T. Johnson, Dist. Atty. (Michael Rubin, of counsel), for plaintiff.

Harvey Slovis, for defendant.

WILLIAM C. DONNINO, Justice:

The issue presented is whether the Court should grant the District Attorney's application to amend count two of the indictment charging intentional murder under Penal Law § 125.25(1) by substituting in its place the charge of depraved mind murder under Penal Law § 125.25(2). The Court denied that application for the following reasons.

Defendant is charged with two counts of murder in the second degree; both counts are identical and factually charge the defendant, pursuant to Penal Law § 125.25(1), with the intentional murder of her infant daughter. According to the District Attorney, the Grand Jury voted to indict defendant on one count of intentional murder and one count of depraved mind murder, but due to a clerical error, count two was drafted to read intentional murder and not depraved mind murder. The proposed amendment, the District Attorney contends, would conform the indictment to the theory of the prosecution as reflected in the evidence before the Grand Jury. CPL 200.70(1), (2).

A review of the minutes of the Grand Jury proceeding reveals that the evidence is sufficient to support a count of depraved mind murder and that the Grand Jury was in fact instructed to consider the charge of depraved mind murder. Based on the worksheet of the Grand Jury submitted by the District Attorney, it appears that the Grand Jury voted to indict defendant for depraved mind murder. Nonetheless, it is the Court's view that CPL 200.70 does not allow the requested amendment.

To begin, a court's jurisdiction over a defendant in felony cases must be based upon the decision of a Grand Jury as expressed in an indictment. This requirement derives from the State Constitution, not from any act of the legislature. See N.Y. Const., Art. I, § 6; People v. Boston, 75 N.Y.2d 585, 555 N.Y.S.2d 27, 554 N.E.2d 64 (1990); Matter of Simonson v. Cahn, 27 N.Y.2d 1, 313 N.Y.S.2d 97, 261 N.E.2d 246 (1970). ¹ As a result, the Legislature's ability to enact statutes that alter or amend indictments is necessarily limited by whether such modification is in violation of the constitution. The constitution itself does not provide for a procedure to amend an indictment. Indeed, prior to the adoption of the Code of Criminal Procedure in 1881 by the Legislature, indictments could not be amended and were commonly dismissed on purely technical grounds. See People v. Ercole, 308 N.Y. 425, 430, 126 N.E.2d 543 (1955). With the adoption of the Code of Criminal Procedure in 1881, the Legislature finally decided that indictments could in fact be amended, but only in instances where there was a "variance between the allegation therein and the proof, in respect to time, or in the name or description of any place, person or thing ..." Code of Criminal Procedure § 293. The statute was narrowly drafted to preclude material alterations to an indictment and, ultimately, to avoid any infringement upon a defendant's constitutional right to be brought to trial on an indictment of a Grand Jury. See People v. Johnson, 104 N.Y. 213, 216, 10 N.E. 690 (1887).

The courts, conscious of the Legislature's limited power to circumvent the constitutional requirement, strictly interpreted the provisions of Code of Criminal Procedure § 293. See People v. Ercole, supra, at 430-31, 126 N.E.2d 543; People v. Miles, 289 N.Y. 360, 362, 45 N.E.2d 910 (1942). Thus, under that statute, it was permissible to correct errors in indictments which misnamed property, owners, or victims. See People v. Lamm, 292 N.Y. 224, 54 N.E.2d 374 (1944); People v. Geyer, 196 N.Y. 364, 90 N.E. 48 (1909). An indictment, however, could not be amended to change the identity of the crime. People v. Geyer, supra, at 367-368, 90 N.E. 48. In the words of Geyer, "it could not have been and was not the purpose of the legislature to attempt to authorize the trial court by amendment to change the substantial elements and nature of the crime charged and in effect substitute a new indictment in the place of the one found by the grand jury." Id. at 367, 90 N.E. 48.

The limitations of Code of Criminal Procedure § 293 were quite evident in People v. Oliver, 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874 (1958). There, the defendant was indicted for burglary in the first degree. The factual allegations in the indictment, however, were missing an essential element of the crime of burglary in the first degree. In the absence of that element, the allegations were only sufficient to charge burglary in the second degree. The Court of Appeals held that the indictment could not be amended to add the missing element to the factual allegations to charge burglary in the first degree. ²

With the repeal of the Code of Criminal Procedure and the enactment of the Criminal Procedure Law, the applicable statute for amending indictments became CPL 200.70. Unlike the Code of Criminal Procedure section 293, CPL 200.70 has two subdivisions. The first subdivision substantially restates the Code; ³ the second subdivision is new, but speaks only to when an indictment may "not" be amended and, as the second subdivision relates to the issues presented in this case, it reflects the case law developed under the Code.

The staff comment to CPL 200.70 (originally numbered CPL 100.60) explained that "[t]his proposed section--designed to avoid technical objections not affecting a substantial right of the defendant--restates in large measure the provisions of Code of Criminal Procedure § 293. Unlike the Criminal Code, the proposed section authorizes amendments to be made before trial. A rational pleading system must authorize the rectifying of mistakes when no substantial rights are infringed." Proposed New York Criminal Procedure Law, p. 177. (emphasis in original). Thus, neither the language of CPL 200.70, nor the legislative history, reveal an intent to change the law, as it existed under the Code, as to the kind of amendments authorized by statute. See People v. Newell, 95 A.D.2d 815, 463 N.Y.S.2d 538 (2d Dept.1983).

Under that law, the District Attorney's proposed amendment to the indictment is not authorized. People v. Oliver, supra. Here, an indictment has been signed by the foreperson of the grand jury, and has been filed with the court. Nowhere in the instrument are the factual allegations that the defendant, acting with depraved indifference to human life, recklessly caused the death of another person. Indeed, the defendant is charged with intentional conduct, not reckless conduct. The District Attorney's request is that the allegations of the crime charged in the second count be stricken and that the court permit the insertion of all of the essential and material elements of depraved mind murder. Plainly, the amendment, if granted, would materially alter the indictment as handed down by the Grand Jury.

Furthermore, as indicated, unlike the Code provision, CPL 200.70 includes express language as to when an indictment may "not" be amended. Thus, CPL 200.70(2) expressly states in pertinent part that "[a]n indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it; nor may an indictment ... be amended for the purpose of curing: (a) A failure thereof to charge or state an offense; or (b) Legal insufficiency of the factual allegations; ..." The amendment contemplated by the District Attorney would in effect accomplish what is plainly forbidden by CPL 200.70(2). Here, the indictment fails to allege the crime of depraved mind murder, and the factual allegations are plainly insufficient to put the defendant on notice that she has been indicted for depraved mind murder. See People v. Sollars, 91 A.D.2d 909, 457 N.Y.S.2d 792 (1st Dept.1983).

Matter of Detrece H., 78 N.Y.2d 107, 571 N.Y.S.2d 899, 575 N.E.2d 385 (1991) recently interpreted a similar statutory provision as applied in the Family Court Act to juvenile delinquency petitions. In Detrece, the Court held that a juvenile delinquency petition, which failed to contain nonhearsay factual allegations to support each element of the crime and the respondent's commission thereof, as required by statute, could not be amended, pursuant to Family Court Act § 311.5, to include such nonhearsay allegations. Like CPL 200.70(2), Family Court Act § 311.5(2)(b) precludes the amending of a petition for the purpose of curing the legal insufficiency of the factual allegations. The Court found that the petition's factual allegations were legally insufficient because they were not in the required nonhearsay form and "if section 311.5(2)(b) is given what appears to be its intended meaning, the petition may not be amended. Any other result ... would deprive that provision of any practical effect." Matter of Detrece, supra at 110, 571 N.Y.S.2d 899, 575 N.E.2d 385 (citations omitted). ⁴

Finally, People v. Gray, 157 A.D.2d 596, 550 N.Y.S.2d 344 (1st Dept.1989) and People v. Ray, 71 N.Y.2d 849, 527 N.Y.S.2d 740, 522 N.E.2d 1037 (1988) are not to the contrary. In Gray, the Grand Jury was asked to consider burglary in the second degree under Penal Law § 140.25(2) which required a finding that the building the defendant illegally entered was a dwelling. The indictment as filed, however, charged the defendant with burglary in the second degree under Penal Law § 140.25(1)(b). This crime requires that the defendant knowingly and unlawfully entered a building with intent to commit a crime, and in effecting entry or while in the building or in immediate flight therefrom, the defendant caused physical injury to any person who was not a participant in the crime. Penal Law § 140.25(1)(b). Following an in...