People v. Robinson

• Citation: 419 N.Y.S.2d 320,71 A.D.2d 779
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles Thomas ROBINSON, Appellant.
• Decision Date: 26 July 1979
• Court: New York Supreme Court — Appellate Division

Page 320

419 N.Y.S.2d 320

71 A.D.2d 779

The PEOPLE of the State of New York, Respondent, v. Charles Thomas ROBINSON, Appellant.

Supreme Court, Appellate Division, Third Department.

July 26, 1979.

Greg D. Lubow, Greene County Public Defender, Catskill (Ralph C. Lewis, Jr., Catskill, of counsel), for appellant.

Seymour Meadow, Greene County Dist. Atty., Catskill (James H. Eckl, Catskill, of counsel), for respondent.

Before MAHONEY, P. J., and GREENBLOTT, KANE, STALEY and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Greene County, rendered July 12, 1978, upon a verdict convicting defendant of the crime of attempted assault in the second degree.

On December 17, 1977, defendant, while an inmate at the Coxsackie Correctional Facility, refused to re-enter his cell pursuant to the oral order of Correction Officer Browne. After Browne pushed defendant into his cell, defendant struck the officer in the face with his fist. Defendant was indicted for assault in the second degree (Penal Law, § 120.05, subd. 3) and, after a jury trial, convicted of the crime of attempted assault in the second degree.

On this appeal, defendant assigns as reversible error (1) the amendment of the indictment so as to insert Correction Officer Browne's name rather than that of Correction Officer Perin, (2) trial court permission of examination of a witness for the People concerning his Grand Jury testimony, and (3) the assertion that he was convicted of a nonexistent crime. We find no merit in these contentions.

An indictment may be amended before trial or even during trial with respect to errors concerned with "names of persons" (CPL 200.70, subd. 1; cf. People v. Trimm, 29 A.D.2d 83, 285 N.Y.S.2d 649; People v. Cruz, 285 App.Div. 1076, 139 N.Y.S.2d 722) provided that upon amendment the court, upon application of the defendant, order any adjournment of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense. The defendant made no such application. Moreover, the bill of particulars recited the assault was made on Officer Browne.

Next, Officer Browne testified at trial that he was struck by defendant three times and felt "pain severe enough that it hurt" and, further, that "it hurt * * * the only way I can describe it * * * it was pain". On direct examination by the prosecutor, Browne testified that he had given previous testimony "that was different in words" in that he had heretofore testified that the pain he received "was not pain enough to make me pass out or anything like that and that it didn't bother me". Citing to People v. Fitzpatrick, 40 N.Y.2d 44, 386 N.Y.S.2d 28, 351 N.E.2d 675 and CPL 60.35, defendant contends that since Browne's trial testimony supported the People's case, it was error to admit the reinforcing Grand Jury testimony. Both CPL 60.35 and Fitzpatrick (supra) only condemn use of a prior inconsistent statement to refresh a witness' recollection when that witness has testified upon a material issue in a manner that does not tend to disprove the position of the party who called him. Here, while the prosecutor's tactic may have been objectionable on the ground it improperly...