People v. Perez

OPINION OF THE COURT

The issue presented in each of these cases is whether the trial court exceeded its authority under CPL 200.70 when it amended a criminal indictment by adding a new count. In both instances, the People asserted that the count had been properly voted by the Grand Jury but left out of the indictment as a result of a clerical error. We conclude that the courts lacked the statutory authority to order the amendments. The convictions on the added charges must therefore be vacated and the counts dismissed.

In People v Perez, a Bronx County Grand Jury filed an indictment charging defendant with attempted murder, reckless endangerment and two counts of attempted assault. Some six months later, prior to trial, the People moved to amend the indictment to include one count of criminal possession of a weapon arising from the same incident. The prosecutor asserted that the count had been dropped from the indictment through inadvertence though it had been voted upon and approved by the Grand Jury. The Judge agreed to review the Grand Jury minutes and later concluded that the indictment should be amended to reflect the additional charge of posses

In People v Vasquez, a Bronx County Grand Jury filed an indictment charging defendant with intentional murder and four other counts. Before trial, the People moved to amend the indictment to include a charge of felony murder based upon the same incident. As in Perez, the People blamed the absence of the charge from the face of the indictment on a clerical error and offered to produce Grand Jury records to demonstrate that the Grand Jury had voted to indict on the charge. Upon review, the trial court ordered the indictment amended. Defendant was convicted of the added felony murder charge and robbery in the first degree. The Appellate Division found no error in the court’s action amending the indictment.

Section 6 of article I of the State Constitution guarantees individuals the right to indictment by a Grand Jury before being tried for an infamous crime (NY Const, art I, § 6). That requirement, rooted in the belief that the public should have a check against the potential abuse of power by those vested with the prosecutorial authority of the State (People v Iannone, 45 NY2d 589 , 594-595), is a matter of " 'public fundamental rights fixed by the Constitution’ ”, not one of " 'policy, expediency or convenience’ — as a district attorney or judges may see it” (see, Matter of Simonson v Cahn, 27 NY2d 1 , 3 [quoting People ex rel. Battista v Christian, 249 NY 314 , 318]). At common law, the significance of an indictment was so great that trial courts lacked the authority to amend it in any way (see, People v Ercole, 308 NY 425 , 430; People v Jackson, 153 Misc 2d 270 , 271; see also, Ex parte Bain, 121 US 1 , 6). Amendments had to be authorized by statute and even those the Legislature authorized had to conform to the dictates of the Constitution.

The rigidity of the common-law rule resulted in the dismissal of indictments for purely technical reasons and thus, in 1881, the Legislature for the first time authorized amendments to a limited degree (see, People v Ercole, supra, at 430 ; Code Grim Pro § 293). The statute, section 293 of the Code of Criminal Procedure, permitted a court to vary an indictment in matters relating to times, names or descriptions, provided that the accused was not prejudiced.

The guiding principle of these cases and of section 293 of Code of Criminal Procedure was expressed in People v Geyer ( 196 NY 364 , 367): "[I]t could not have been and was not the purpose of the legislature to attempt to authorize the trial court by amendment to change the substantial elements and nature of the crime charged and in effect substitute a new indictment in the place of the one found by the grand jury.”

The present CPL 200.70 superseded section 293 of the Code of Criminal Procedure. Though the language of the new statute differs from that of section 293, the drafters stated that no substantive change in the law was intended (1967 Proposed NY CPL, at 177). The most notable change between the form of the current law and its predecessor was the addition of subdivision (2), which explicitly lists instances where no amendment is allowed. Under the current statutory scheme, subdivision (1) is largely a restatement of the Code of Criminal Procedure’s affirmative grant of power to make certain nonsubstantive changes. That subdivision authorizes amendments pertaining to "matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury”. Subdivision (2), on the other hand, spells out changes that are prohibited. Significantly, the subdivision prohibits amendment of an in

Defendants argue that this language bars an amendment that adds an offense to the indictment. In their view, the changes approved by the trial courts here were not changes in form but changes in substance and thus beyond the statute, under the reasoning of cases like People v Geyer ( 196 NY 364 , supra) and People v Van Every ( 222 NY 74 , supra; see also, People v Oliver, 3 NY2d 684 ).

In response, the People note first that the addition of a charge duly voted by the Grand Jury does not alter "the theory or theories of the prosecution as reflected in the evidence before the grand jury”. Thus, they see subdivision (1) of CPL 200.70 as expressly authorizing the amendment by the trial court. They point out that CPL 200.70 and its predecessor were specifically designed to avoid dismissals premised solely on technical errors and assert that to require dismissal here where the errors were patently technical — clerical mistakes— would be contrary to the intent of the statute (see, People v Gray, 157 AD2d 596 , lv denied 75 NY2d 966 ).

Crucial to the People’s argument is a limited reading of subdivision (2) of CPL 200.70. They assert that the relevant language — the prohibition against curing a "failure * * * to charge or state an offense” — refers narrowly to situations where the indictment alleges conduct that is either not criminal or an impossibility (e.g., a future crime). Thus, in the People’s view, the language envisions situations where the People either cannot prove the facts stated in the indictment or, even if they can and do, no crime will have been demonstrated.

The People’s reading of the statute would lead to anomalous results. For instance, the prosecution would be barred from fixing a small typographical error that caused a count in the indictment to state that the crime took place in a future year (see, People v Van Every, 222 NY 74 , supra), but allowed to amend the indictment if no count had been stated at all. Similarly, under CPL 200.70 (2) (b), prohibiting an amendment to cure the legal insufficiency of the factual allegations, the People would be barred from adding a single fact to cure the indictment but allowed to add all the facts if, by inadvertence, the count was left out in its entirety.

Conversely, the People read the grant of power contained in subdivision (1) too broadly. In effect, they contend that amend

Thus, the People’s contentions that in these cases defendants were neither denied their right to be indicted by a Grand Jury nor prejudiced by the belated notice the Constitution requires when the new charge was subsequently added are not relevant (see, NY Const, art I, § 6; People v Iannone, 45 NY2d 589 , 594, supra). Because common law admitted no power to amend an indictment, the narrow question before us is whether the Legislature, through CPL 200.70, has granted trial courts the power to order the amendments sought here. In view of the statutory language, we conclude that the Legislature has not done so and the omission must be cured by superseding indictment or re-presentment. The People note the waste of prosecutorial resources that will result from requiring a superseding indictment to bring a count which the records indicate the Grand Jury clearly intended. They also point to the added inconvenience to witnesses if the Grand Jury has disbanded and re-presentment is necessary. The obvious merit to those policy considerations must be addressed by the Legislature, however, not the courts (see, People v Jackson, 153 Misc 2d 270 , 276, supra [Donnino, J.]).

We have reviewed defendants’ other contentions and they are without merit.

Accordingly, in People v Perez, the order of the Appellate Division should be modified by vacating the conviction for criminal possession of a weapon in the second degree and dismissing that count of the indictment and the case remitted to Supreme Court, Bronx County, for resentencing on the reckless endangerment count and, as so modified, affirmed. In