You are here: / / AMENDMENT OF THE INDICTMENT ON THE EVE OF TRIAL CHANGED THE THEORY OF PROSECUTION...
,

AMENDMENT OF THE INDICTMENT ON THE EVE OF TRIAL CHANGED THE THEORY OF PROSECUTION FROM ACTUAL POSSESSION OF A WEAPON TO CONSTRUCTIVE POSSESSION OF A WEAPON, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment, determined that the People should not have been allowed to amend the indictment on the eve of trial. The indictment charged defendant with possession of a weapon when he visited his girlfriend on October 20. The People sought to amend the indictment to allege possession of a weapon on October 22, when the weapon was found pursuant to a search of defendant’s residence:

By seeking, on the eve of trial, to amend the indictment to include the days following the purported incident with the former girlfriend, the People changed the theory of their case from the defendant’s actual possession of a weapon, as witnessed and attested to by the former girlfriend, to constructive possession, meaning his exercise of dominion or control over an area of the defendant’s residence where a loaded weapon was found … . Defense counsel, in opposing the amendment, asserted that he had relied upon the indictment and the VDF [voluntary disclosure form] prepared by the District Attorney’s Office, giving the date of the offense as October 20, 2015, in preparing for the case, including defense counsel’s efforts to prove, through time cards and testimony, that it was impossible for the defendant to have been at his former girlfriend’s apartment at the time of the incident on October 20, 2015. As such, defense counsel presented evidence that the defense had been substantially undermined by the amendment of the indictment and that, effectively, he was forced to forgo an alibi-type defense … . People v McLean, 2019 NY Slip Op 02356, Second Dept 3-27-19

 

You might also like
Consent to Divorce In Exchange for Payments Would Violate Public Policy
A FLATTENED CARDBOARD BOX ON THE FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL CASE (SECOND DEPT).
QUESTIONS OF FACT ABOUT THE APPLICABILITIY OF THE ASSUMPTION OF THE RISK DEFENSE AND THE VALIDITY OF THE RELEASE UNDER THE GENERAL OBLIGATIONS LAW PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT FITNESS CENTER; ALLEGEDLY, PLAINTIFF WAS INJURED WHEN THE TRAINER INSTRUCTED HIM TO ATTEMPT A BALANCING EXERCISE (SECOND DEPT).
MOTION TO SET ASIDE VERDICT IN THIS PERSONAL INJURY CASE WAS PROPERLY GRANTED, PLAINTIFF, A SCHOOL BUS MATRON INJURED ON THE BUS, DID NOT HAVE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT.
DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT).
THE CITY (NYC) HAD ENTERED A SPECIAL RELATIONSHIP WITH DEFENDANT PROPERTY OWNERS CONCERNING THE REPAIR OF A DEFECTIVE SIDEWALK, DEFENDANTS WERE ENTITLED TO CONTRIBUTION FROM THE CITY IN THIS SLIP AND FALL CASE.
REPORTS BY THE DISTRICT ATTORNEY’S CONVICTION REVIEW UNIT (CRU) EXONERATING CONVICTED PERSONS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL); AN EXONERATED PERSON MAY WAIVE THE SEALING REQUIREMENT (CPL 160.50) AND CONSENT TO DISCLOSURE OF A REPORT; THE RELEASED REPORT HERE IS SUBJECT TO REDACTION DETERMINED IN AN IN CAMERA REVIEW BY A JUDGE (SECOND DEPT).
PLAINTIFF WAS A PASSENGER IN DEFENDANT MC RAE’S VEHICLE WHEN MC RAE’S VEHICLE WAS STRUCK FROM BEHIND; THE ALLEGATION THAT MC RAE STOPPED FOR NO APPARENT REASON RAISED A QUESTION OF FACT WHETHER MC CRAE WAS COMPARATIVELY NEGLIGENT; COMPARATIVE NEGLIGENCE WILL PRECLUDE SUMMARY JUDGMENT WITH RESPECT TO CROSS CLAIMS BETWEEN DEFENDANTS (SECOND 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

DEFENDANT WAS HOUSED FIVE HOURS AWAY FROM THE COURT AND HIS ATTORNEY, REPEATED... ALTHOUGH THE OPERATION OF THE KNIFE WAS DEMONSTRATED AT TRIAL, THERE WAS NO...