People v. McLean
| Decision Date | 27 March 2019 |
| Docket Number | 2017–07337,Ind.No. 1043/16 |
| Citation | 96 N.Y.S.3d 632,170 A.D.3d 1196 |
| Parties | The PEOPLE, etc., Respondent, v. Malcolm MCLEAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Jason R. Richards of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the judgment is reversed, on the facts and the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Nassau County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
The defendant was convicted, after a jury trial, of criminal possession of a weapon in the second degree. The matter arose from an allegation by the defendant's former girlfriend that the defendant had arrived at her apartment in the early morning hours of October 20, 2015, carrying a small, black revolver, and thereafter left her several threatening text messages and voicemail messages. As a result of this complaint by the former girlfriend, the police obtained a search warrant for the defendant's residence, a house owned by his mother, and discovered a loaded revolver in a desk drawer together with mail with the defendant's name on it. The search warrant was executed and the gun was discovered on October 22, 2015.
The defendant was indicted and charged with, inter alia, criminal possession of a weapon in the second degree, in that "on or about the 20th day of October, 2015," the defendant possessed a loaded revolver. According to the voluntary disclosure form (hereinafter the VDF) prepared by the District Attorney's Office on July 1, 2016, the crime occurred on October 20, 2015, at 7:36 a.m., at the former girlfriend's address in Hempstead. The VDF does not refer to the defendant's residence.
On the first day of the trial, just as voir dire was about to get underway, the People moved pursuant to CPL 200.70 to amend the date of the incident on the indictment from "October 20, 2015," to "on or about October 20, 2015, to October 22, 2015." The People contended that this was a minor temporal correction that did not change the theory of the People's case, nor prejudice the defendant. Defense counsel objected, contending that the proposed amendment did, in fact, change the theory of the prosecution and prejudice the defendant. The court granted the People's application, and thereafter, the defendant was convicted of criminal possession of a weapon in the second degree.
The Supreme Court should have denied the People's oral application to amend the indictment. "At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the...
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