People v. Johnson — 178 A.D.2d 300

Majority

p. 300

The People of the State of New York, Respondent, v Ronald Isaac Johnson, Appellant.

Judgment, Supreme Court, New York County (Howard Bell, J.), rendered October 5, 1989, which convicted defendant after a jury trial of assault in the second degree and sentenced him to an indeterminate term of imprisonment of from 2 to 6 years, unanimously affirmed.

The trial court permitted the People to amend a count in the indictment by inserting the word "serious” before the phrase "physical injury” in regard to the charge of violating Penal Law § 120.05 (4), finding that the word had been omitted because of a typographical error.

The factual allegations underlying the indictment clearly show that the People had in mind a theory that defendant recklessly caused serious physical injury; defendant was not, therefore, prejudiced by the amendment of the indictment to correct a typographical error, even though the correct Penal

p. 301

Law provision had been cited. (See, CPL 200.70 [1].) Concur— Sullivan, J. P., Wallach, Kupferman, Asch and Kassal, JJ.