You are here: / / THE INDICTMENT DID NOT INDICATE THE SPECIFIC SUBDIVISION OF THE STATUTE...

THE INDICTMENT DID NOT INDICATE THE SPECIFIC SUBDIVISION OF THE STATUTE DEFENDANT WAS CHARGED WITH VIOLATING, A JURISIDICTIONAL DEFECT WHICH WAS NOT CURED BY AN AMENDMENT; CONVICTION REVERSED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the indictment was defective because it did not indicate the specific statutory subdivision defendant was accused of violating:

… [W]e agree with defendant that the count of the indictment under which he was convicted was jurisdictionally defective and that the court should not have amended the indictment at the People’s request. While the jurisdictional requirements of an indictment count are ordinarily met by an allegation that the defendant “violated the terms of a specific statute designated by name and section” … , that rule does not apply where, as here, the statute at issue allows for commission under discrete subdivisions and there is no specific allegations regarding the subsection that the defendant allegedly violated … . The second count of the indictment charging defendant with criminal possession of a weapon in the third degree under Penal Law § 265.02(1), could be satisfied by proof that defendant committed the “bump-up” crime of fourth-degree criminal possession of a weapon (Penal Law 265.01) in one of four ways, without specifically alleging the provision that defendant violated. Further, the amendment had the effect of “curing . . . a failure . . . to charge or state an offense” or the “legal insufficiency of the factual allegations,” both of which are prohibited by CPL 200.70(2).

Accordingly, the judgment of conviction is vacated and the indictment dismissed. People v Jones, 2026 NY Slip Op 02214, First Dept 4-14-26

Practice Point: If the statute allows for commission of the offense under discrete subdivisions, the specific subdivision under which defendant is charged must be indicated in the indictment. Failure to indicate the subdivision is a jurisdictional defect which apparently cannot be cured by amendment.

 

You might also like
WITNESS’S DISAVOWED IDENTIFICATION OF ANOTHER AS THE PERPETRATOR COULD NOT BE USED AFFIRMATIVELY BY THE DEFENDANT AS EVIDENCE OF THIRD-PARTY CULPABILITY.
Questions of Fact Raised Whether Plaintiff’s Infant-Daughter’s Physical and Mental Deficiencies Were Caused by Inadequate Medical Treatment Prior to and During Birth, Despite Indications Plaintiff’s Daughter Was Born Healthy
FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.
THE HANDWRITTEN ADDITION TO THE PRINTED CONTRACT IS PRESUMED TO EXPRESS THE LATEST INTENTION OF THE PARTIES; HERE THE ENTRY CREATED AMBIGUITY IN THE “NO DAMAGES FOR DELAY” CLAUSE REQUIRING DISCOVERY (FIRST DEPT). ​
Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required
RESPONDENT STATE COLLEGE WITHHELD EXCULPATORY EVIDENCE IN THIS COLLEGE MISCONDUCT PROCEEDING WHICH RESULTED IN PETITIONER-STUDENT’S EXPULSION; THE EXPULSION PENALTY WAS VACATED AND THE STUDENT WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​
FIREFIGHTER’S RULE DID NOT PRECLUDE NEGLIGENCE SUIT BY A POLICE OFFICER INJURED WHEN HE STEPPED OUT OF HIS VAN INTO A DEPRESSED AREA AROUND A SEWER GRATE, CITY DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​
THE NYC ADMINISTRATIVE RULES PLACING CERTAIN RESTRICTIONS ON EXPRESSIVE MATTER VENDORS IN CITY PARKS ARE VALID AND ENFORCEABLE (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THERE ARE QUESTIONS OF FACT WHETHER PLAINTIFF WAS TERMINATED FROM HIS EMPLOYMENT... PLAINTIFF FATHER WAS AWARDED SOLE CUSTODY OF THE CHILD IN AN ORDER THAT DIRECTED...