
    The People of the State of New York, Respondent, v John Spann, Appellant.
    Argued June 11, 1982;
    decided July 2, 1982
    
      POINTS OF COUNSEL
    
      Philip L. Weinstein and William E. Hellerstein for appellant.
    The trial court constructively amended the indictment charging appellant with robbery, in violation of the State Constitution, when it instructed the jury that a robbery verdict could be based on a finding that appellant took cocaine from the complainant, although the sole theory presented by the prosecution to the Grand Jury, reflected in the allegations in the indictment, and presented at trial, was that the property taken was “jewelry and money” (NY Const, art I, § 6). (Ex parte Bain, 121 US 1; People v Iannone, 45 NY2d 589; Gaither v United States, 413 F2d 1061; Stirone v United States, 361 US 212; People v Cunningham, 48 NY2d 938; People v Van Every, 222 NY 74; Berger v United States, 295 US 78; United States v Salinas, 601 F2d 1279, 654 F2d 319; United States v Crocker, 568 F2d 1049.)
    
      Mario Merola, District Attorney (Peter D. Coddington and Steven R. Kartagener of counsel), for respondent.
    I. Appellant’s guilt was proved beyond a reasonable doubt by overwhelming evidence. II. The court’s charge to the jury did not impermissibly amend the indictment. (People v Iannone, 45 NY2d 589; People v White, 53 NY2d 721; 
      People v Tucker, 55 NY2d 1; People v Sprague, 217 NY 373; People v Johnson, 39 NY2d 364; People v Henderson, 41 NY2d 233; People v Freeman, 22 NY2d 526; People ex rel. Prince v Brophy, 273 NY 90; People v Foster, 19 NY2d 150; People ex rel. Fonseca v La Vallee, 34 AD2d 851.)
   OPINION OF THE COURT

Jasen, J.

The sole issue presented for our consideration is whether the trial court, in its charge to the jury, constructively amended the indictment in violation of defendant’s rights under the State Constitution by modifying an essential element of the crime charged. We conclude that it did not.

The Bronx County Grand Jury handed down an indictment charging defendant with first degree robbery. (Penal Law, § 160.15.) Specifically, the indictment alleged that defendant “on or about October 18, 1979, did forcibly steal property to wit, jewe[lr]y and lawful money from Shaniqua Montgomery and in the course of the commission of the crime he displayed what appeared to be a pistol, revolver or other firearm.” (Emphasis supplied.)

The principle witness for the prosecution was the complainant, Shaniqua Montgomery. She testified that defendant, whom she had known for several months, came to her apartment on October 18, 1979, and took two watches and some gold chains. Montgomery also stated that she discovered $70 was missing from a jacket pocket after defendant fled from the premises.

At the close of the People’s case, the defendant took the stand and testified in his own behalf. While defendant’s story paralleled that of the complainant to a certain extent, there were marked discrepancies concerning the incident of October 18, 1979. Defendant testified that he was an addict suffering from withdrawal on the date in question. He stated that he had obtained drugs from the complainant in the past and that his purpose in visiting the complainant’s apartment was to obtain some heroin from her on credit because he did not have any money. When she refused to give him any heroin, defendant stated that he forcibly removed a quantity of cocaine from her purse and then left the premises. In addition to asserting that he had no gun while at the apartment, defendant specifically disclaimed the theft of any money or jewelry. According to defendant’s version of the incident, he only stole cocaine from the complainant.

The trial court submitted the count of robbery in the first degree to the jury, as well as the lesser counts of robbery in the third degree and petit larceny. The court, over objection by defense counsel, then charged the jury that they could find the defendant guilty of robbery in the first degree and the lesser counts even if they found that defendant had stolen drugs from the complainant rather than “money or jewelry” as specified in the indictment. The jury acquitted defendant of robbery in the first degree, but returned a verdict convicting him of robbery in the third degree.

The New York State Constitution guarantees that “[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury”. (NY Const, art I, § 6.) As we have only recently noted, an indictment, qua document, serves a number of important purposes. “First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense”. (People v lannone, 45 NY2d 589, 594.) Second, an indictment prevents the court or prosecutor from usurping the Grand Jury’s powers since it ensures “that the crime for which the defendant is brought to trial is in fact [the] one for which he was indicted by the Grand Jury”. (Id., at p 594; see, also, Russel v United States, 369 US 749, 770; Ex parte Bain, 121 US 1, 10, 13.) Finally, by specifying the particular crime for which a defendant has been tried, an indictment prevents subsequent retrials for the same offense in contravention of the constitutional prohibition against double jeopardy. (People v lannone, supra, at p 595.)

In furtherance of the constitutional right to indictment by Grand Jury, the Legislature has specified that every indictment must contain, among other things, “[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, (a) asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation”. (CPL 200.50.) However, in contrast to common law (see, e.g., People v Van Every, 222 NY 74, 78), a court is now authorized by statute to “order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like” provided the amendment does not change the theory of the prosecution or otherwise serves to prejudice the defendant on the merits. (CPL 200.70, subd 1.)

The indictment in this case clearly fulfilled the statutory and constitutional requirements of due process and fair notice. (See, e.g., People v Cohen, 52 NY2d 584.) The indictment informed defendant that he was accused of forcibly stealing property by use of a weapon from a specified individual on a given date. In addition, defendant was informed before trial, pursuant to voluntary disclosure, of the exact location and time of the robbery. The proof that was presented by the People at trial supported the crime as alleged in the indictment. Defendant cannot now be heard to complain that he was unfairly informed about the nature of the property stolen since it was his own testimony that created the discrepancy between the proof at trial and the factual allegation set forth in the indictment.

Nor do we find any merit to defendant’s argument that there was an impermissible amendment of the indictment with regard to a material element of the crime charged by virtue of the trial court’s instructions to the jury on the nature of the property stolen. The particular nature of the property stolen is not, by statute, a material element of the crime of robbery. Robbery merely requires the forcible stealing of “property” (see Penal Law, art 160), and “property” is rather broadly defined as “any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value including any gas, steam, water or electricity, which is provided for a charge or compensation.” (Penal Law, § 155.00, subd 1.) Furthermore, there is no doubt that the crime charged by the trial court was the same criminal transaction for which the Grand Jury intended to indict the defendant. (See, e.g., People v Ganett, 51 NY2d 991.) But for the type of property involved, the nature of the crime, as well as all of the underlying facts (i.e., victim, time, place and date), were the same.

Most importantly, it must be remembered that, unlike the cases relied upon by the defendant (e.g., Stirone v United States, 361 US 212; People v Geyer, 196 NY 364), any discrepancy between the indictment and the proof at trial was caused by the defendant voluntarily taking the stand in his own behalf and admitting that he committed a different version of the robbery than was alleged in the indictment.

The proof at trial, either as presented by the People or by defendant, is sufficient to sustain his conviction of robbery in the third degree. Indeed, defendant offers no argument to the contrary. Since the charge to the jury provides no basis for overturning this conviction, the order of the Appellate Division should be affirmed.

Jones, J.

(dissenting). I cannot agree that defendant’s conviction should be affirmed.

Although I might agree that, had a timely application been made by the People under CPL 200.70 (subd 1), with notice to defendant (as is expressly required by the statute), the trial court would have had authority to amend the indictment in this case to charge defendant with stealing cocaine or drugs as well as, or instead of, “jewelry and money”, the prescriptions of that statute were not followed in this instance.

Defendant, an addict suffering from heroin withdrawal, testified by way of defense (in the nature of confession and avoidance) that, although he had been in the victim’s apartment and had taken property from her, the purpose and consequence of his conduct was to obtain cocaine and not to obtain either jewelry or money, both of which he denied taking. It was only after this testimony had been placed before the jury, and without any application for amendment of the indictment by the People, that the Trial Judge, in response to the question from the jury — “What robbery charge is made for what items?” — over objection charged in supplemental instructions that the jury could convict defendant if they found that he stole cocaine rather than jewelry and money.

The Legislature has prescribed the procedure for accomplishing permissible amendment of indictments (CPL 200.70, subd 1). That procedure was not followed in this instance. Moreover, to permit such a critical change in the rationale of the prosecution and the proof required for conviction, after defendant had irretrievably committed himself and after the case had been submitted to the jury, in my view, constituted such a denial of defendant’s constitutional right to due process as to call for a reversal of his conviction and a remittal of the case for a new trial.

Chief Judge Cooke and Judges Wachtler, Fuchsberg and Meyer concur with Judge Jasen; Judge Gabrielli concurs in result only; Judge Jones dissents and votes to reverse in a separate opinion.

Order affirmed.  