SHORTLY BEFORE TRIAL, THE PEOPLE WERE PROPERLY ALLOWED TO AMEND THE REFERENCE TO A DATE IN THE INDICTMENT (THIRD DEPT).

The Third Department noted that the People were properly allowed to amend the designation of the date of an offense alleged in the indictment shortly before the trial began:

“At any time before or during trial, the court may, upon application of the [P]eople and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to . . . time . . ., when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits” (CPL 200.70 [1]). Here, the original indictment asserted that defendant’s first assault upon the victim took place on June 15, 2017. About two weeks before the commencement of the trial, the People sought leave to amend it to provide that the incident occurred “on or about” June 15, 2017, on the ground that the initial date had been an approximation and that subsequent investigation had narrowed down the time to the late evening hours of June 15, 2017 and/or the early morning hours of June 16, 2017. The amendment did not alter the theory of the prosecution; the People consistently maintained, both before the grand jury and at trial after the amendment, that defendant strangled and assaulted the victim in their room after the gathering in the motel office and before her first treatment at the hospital on the morning of June 16, 2017. The amendment merely served to address the possibility that the incident began in the evening of June 15, 2017 and continued past midnight into the early morning hours of the next day. There was no prejudice to defendant, who did not proffer an alibi defense … . People v Baber, 2020 NY Slip Op 02294, Third Dept 4-16-20