People v. Pena, BT-5
| Decision Date | 01 March 1990 |
| Docket Number | BT-5 |
| Citation | 552 N.Y.S.2d 543,146 Misc.2d 767 |
| Parties | The PEOPLE of the State of New York v. Helder PENA, Defendant |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty. (Joseph Sullivan, of counsel), New York City, for the People.
Robert M. Baum, Legal Aid Soc. (Susan Kay, of counsel), New York City, for defendant.
The accusatory instrument filed in this case charges the Defendant with Reckless Driving in violation of VTL 1190, in addition to a variety of traffic infractions allegedly committed on June 10, 1989. The non-jury trial commenced, as defined by CPL § 1.20(11) when the People's first witness was sworn. Defendant thereupon moved to dismiss the charge of Reckless Driving upon the grounds that VTL 1190 was repealed and a new Reckless Driving charge enacted as VTL 1212, effective November 1, 1988, and thus the accusatory instrument failed to properly charge this crime. Defendant contends the People are prohibited by CPL § 100.45(3) from amending the information since the trial had commenced. Initially the People argued there was no need to amend the information because it contained a charge of Reckless Driving, but then asked the Court to permit an amendment to change the designation of VTL 1190 to VTL 1212.
The crime of Reckless Driving as defined in VTL 1190 was unchanged when the new law VTL 1212 was enacted. In effect 1190 was renumbered 1212. Accordingly, the factual allegations in the information on trial before the Court set forth the crime of Reckless Driving in satisfaction of CPL § 100.15(3). The accusatory part of the information designates the offense as VTL 1190, Reckless Driving. The issue is whether an amendment of the accusatory part of the information to reflect the renumbered section VTL 1212 is prohibited once the trial has commenced.
CPL § 100.45(3) permits an, "amendment of the accusatory part of an information by addition of a count charging an offense supported by the allegations of the factual part of such information" before the commencement of the trial. The Court of Appeals held, in People v. Harper, 37 N.Y.2d 96, 371 N.Y.S.2d 467, 332 N.E.2d 336 (1975), that amendments of informations within the scope of CPL 100.45(3) can only be accomplished by compliance with the requirements of that section. The amendment of an information to change the title and number of the statute charged was found to be governed by CPL § 100.45(3) and was prohibited during trial in People v. Law, 106 Misc.2d 351, 431 N.Y.S.2d 648 (NYC Crim.Ct., 1980). Thus Defendant argues that this provision must be strictly construed to prohibit any amendment of an information once the trial commences.
The information in this case properly names the title of the crime charged; only the numerical designation is in error and sought to be amended. The People do not seek to add a count to the information--the count of Reckless Driving is already contained in both the accusatory and factual parts of the information. CPL § 100.45(3) does not apply to an amendment changing the number of a statute already charged by name. The Court finds that the proposed amendment here is not of the kind specified in CPL § 100.45(3).
The information in this case is sufficient on its face (CPL §§ 100.15 and 100.40) and thus the defect is of a type that may be cured by amendment (CPL § 170.30[1][a]. The Defendant is clearly on notice of the crime with which he is charged since the mislabeled section in no way affects the obvious purport of the information. The proposed amendment here is a defect or error which relates to a matter of form and neither changes the theory of p...
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