People v. Rodriguez — 190 A.D.2d 566

Majority

p. 566

The People of the State of New York, Respondent, v Aracelio Rodriguez, Appellant.

— Judgment, Supreme Court, New York County (Nicolas Figueroa, J.), rendered March 18, 1991, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him to concurrent prison terms of Wz to 9 years on the first two counts and to time served on the third count, unanimously modified, on the law, to the extent of dismissing the third count of the indictment and vacating the sentence imposed thereon, and otherwise affirmed.

Where a defendant did not receive fair notice of the charge against him, reversal of the conviction of that charge is required (People v Grega, 72 NY2d 489 , 496). Here, count three of the indictment mistakenly charged defendant with criminal possession of heroin instead of cocaine. The indictment was

p. 567

never amended. Neither the People nor the trial court ever corrected this error, and it appears from the record that the jury may have been confused as to which substance was the focus in that count, which is, therefore, dismissed. Consequently, defendant was deprived of fair notice that he was facing a charge of criminally possessing cocaine.

We have considered defendant’s remaining contentions and find them to be without merit. Concur — Carro, J. P., Milonas, Ellerin and Asch, JJ.

Cases cited

People of State of New York v. Grega 72 NY2d 489 N.Y. 1988-10-25 at 496 p. 566