People v. Oliver

Decision Date27 February 1958
Parties, 148 N.E.2d 874 The PEOPLE of the State of New York, Respondent, v. Lester OLIVER, Appellant.
CourtNew York Court of Appeals Court of Appeals

Franklin P. Gavin, Albany, for appellant.

George N. Meyl, Dist. Atty., Albany (Condon A. Lyons, Albany, of counsel), for respondent.

PER CURIAM.

The order of the Appellate Division granting a new trial is correct. The indictment, being in the long form, is defective insofar as it charges burglary in the first degree by omitting the essential allegation that it occurred in the nighttime (Penal Law, Consol.Laws, c. 40, § 402, subd. 4), and, being in the long form, it could not be amended nor the deficiency supplied by a bill of particulars or ignored (People v. Ercole, 308 N.Y. 425, 126 N.E.2d 543). Nevertheless the indictment is not to be dismissed inasmuch as even if the offense were committed in the daytime it would be burglary in the second degree (Penal Law, § 403). The misnomer in describing the offense as in the first instead of in the second degree is of no moment if the specific allegations of fact are sufficient (People v. Valentine, 147 App.Div. 31, 34, 131 N.Y.S. 733, 736, affirmed 205 N.Y. 556, 98 N.E. 1111; People v. Miller, 143 App.Div. 251, 256, 128 N.Y.S. 549, 552, affirmed 202 N.Y. 618, 96 N.E. 1125), as they are here to describe the ingredients of burglary in the second degree.

The order appealed from is affirmed.

CONWAY, C. J., and DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur.

Order affirmed.

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31 cases
  • People v. McFarland
    • United States
    • California Supreme Court
    • 20 Noviembre 1962
    ...violation of another' (italics added); and in People v. Oliver (1957) 4 A.D.2d 28 (163 N.Y.S.2d 235, 241(10)), affd. (1958) 3 N.Y.2d 684 (171 N.Y.S.2d 811, 148 N.E.2d 874), the court expressed the view that only one punishment could be imposed where an act of assault 'was an essential ingre......
  • People v. Mackey
    • United States
    • New York Court of Appeals Court of Appeals
    • 10 Enero 1980
    ...circumstances (see McCourt v. People, 64 N.Y. 583, 586; People v. Oliver, 4 A.D.2d 28, 31, 163 N.Y.S.2d 235, 238, affd. 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874). If the State must prove an intent to commit a particular crime as distinct from the general intent to commit crime, the tr......
  • People v. Weis
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Junio 1969
    ...70, 73, 150 N.Y.S.2d 192, 194, 133 N.E.2d 703, 705; People v. Oliver, 4 A.D.2d 28, 31, 163 N.Y.S.2d 235, 239, affd. 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874). Here, the prosecution does not appear to be responsible for such a response, defendant did not register any objection or make ......
  • People v. Gordon, 100
    • United States
    • New York Court of Appeals Court of Appeals
    • 12 Junio 2014
    ...[1980], citing McCourt v. People, 64 N.Y. 583, 586 [1876] ; People v. Oliver, 4 A.D.2d 28, 31, 163 N.Y.S.2d 235 [3d Dept.1957], aff'd., 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874 [1958] ; see also People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071 [1980] ; People v.......
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