
    The People of the State of New York, Respondent-Appellant, v Wayne Grega, Appellant-Respondent. The People of the State of New York, Appellant, v Paul Ray Roberts, Respondent.
    Argued September 14, 1988;
    decided October 25, 1988
    
      POINTS OF COUNSEL
    
      Ernest Abdella and George Abdella for appellant-respondent in the first above-entitled action.
    I. The court below erred in failing to consider appellant’s argument that the issues presented for determination by the jury were so intertwined that a reversal of defendant’s conviction upon the charges of rape in the first degree, sodomy in the first degree and sexual abuse in the first degree mandated a reversal of the conviction upon the charge of unlawful imprisonment in the second degree. II. The circumstances surrounding the conviction of defendant of the crime of unlawful imprisonment in the second degree were so intertwined with the other counts of rape in the first degree, sodomy in the first degree and sexual abuse in the first degree as to mandate a reversal of said conviction upon the reversal of the other three counts of the indictment. III. The evidence offered in support of the charges of rape, sodomy and sexual abuse in the first degree was so intertwined with the proof offered in support of the charge of unlawful imprisonment in the second degree as to effect a merger of the lesser charge of unlawful imprisonment in the second degree into the underlying crimes of rape in the first degree, sodomy in the first degree and sexual abuse in the first degree. (People v Geaslen, 54 NY2d 510; People v Stoesser, 92 AD2d 650; People v Ennis, 107 AD2d 707; People v Russell, 127 AD2d 805; People v Burgess, 107 AD2d 703.) IV. Even if the merger doctrine was not adequately articulated in the court below the question is one of law which the Court of Appeals may consider.
    
      John B. Poersch, District Attorney of Schenectady County (Michael McGarry and Thomas W. Hefferon of counsel), for respondent-appellant in the first above-entitled action.
    Fundamental error should receive harmless error analysis in appropriate cases. (People v Kaminski, 58 NY2d 886.)
    
      Stephen F. Lungen, District Attorney of Sullivan County (Bonnie M. Mitzner of counsel), for appellant in the second above-entitled action.
    I. Respondent’s conviction for manslaughter in the first degree should be upheld. (People v Sullivan, 68 NY2d 495; People v Spann, 56 NY2d 469; People v Iannone, 45 NY2d 589.) II. The trial court properly refused to charge justification. (People v Watts, 57 NY2d 299; People v Collice, 41 NY2d 906; People v Goetz, 68 NY2d 96; People v Lumsden, 201 NY 264.)
    
      John Ferrara, Carl J. Silverstein and Stephan Schick for respondent in the second above-entitled action.
    I. The variance between the indictment that stated "the defendant, with intent to cause serious physical injury, did strike Blanche Mironov in the neck area causing her death”, and the proof at trial of death by strangulation deprived respondent of fair notice of the accusations made against him and usurped the Grand Jury’s powers. (People v Spann, 56 NY2d 469; People v Iannone, 45 NY2d 589; People v Covington, 86 AD2d 877; People v Glover, 57 NY2d 61; People v Mackey, 49 NY2d 274; People v Shealy, 51 NY2d 933; People v Barnes, 50 NY2d 375; People v Davis, 118 AD2d 795; People v Kaminski, 58 NY2d 886.) II. The trial court’s refusal to charge justification despite respondent’s testimony that he struck Ms. Mironov to prevent an accident and to protect himself as she repeatedly hit him from behind in a hysterical rage while he drove at a high speed on the New York State Thruway constitutes reversible error. (People v Watts, 57 NY2d 299; People v Padgett, 60 NY2d 142; People v Collice, 41 NY2d 906; People v Huntley, 87 AD2d 488, 59 NY2d 868; People v Jenkins, 93 AD2d 868; People v Steele, 26 NY2d 526; People v Goetz, 68 NY2d 96; People v Pabon, 106 AD2d 587; People v Alston, 104 AD2d 653; People v Astle, 117 AD2d 382.)
   OPINION OF THE COURT

Kaye, J.

In the two cases before us, defendants’ convictions were reversed on the ground that the theory of prosecution at trial changed from that alleged in the indictment. In People v Grega, we conclude that there was in fact no variance between the theory of the indictment and the proof at trial, and we therefore modify the Appellate Division order and reinstate defendant’s convictions. In People v Roberts, however, we conclude that the trial theory of prosecution differed significantly and prejudicially from the allegations of the indictment, and we therefore affirm the Appellate Division order remitting the manslaughter count of the indictment for a new trial.

People v Grega

Defendant Wayne Grega was charged by indictment with rape, sodomy, sexual abuse and unlawful imprisonment. The indictment alleged that the sexual offenses were committed through defendant’s use of forcible compulsion, consisting of the use of physical force (Penal Law § 130.00 [8] [a]). The indictment did not charge defendant with forcible compulsion by express or implied threats which placed the victim in fear of immediate death or physical injury (Penal Law § 130.00 [8] [b]).

At trial, complainant testified that she met defendant when he brought a pair of handcuffs to the locksmith for whom she worked. In response to his call for a date, complainant and defendant met at a bar, and then repaired to his apartment to pass time before a band they were planning to hear was scheduled to begin playing. Complainant testified that she did not object when defendant kissed her, but when it became clear that he intended to press his advances, she asked him to stop and attempted to move away. According to complainant, defendant then pushed her down on a sofa, held her there despite her struggle, tore off her shirt, dragged her into his bedroom, removed the rest of her clothing while keeping her pinned to the bed, handcuffed her and then bound her hands and feet to the bed with duct tape before he raped, sodomized and otherwise sexually abused her. Defendant, on the other hand, testified that complainant consented to and enjoyed all of the foregoing activity, which he now characterizes as the actions of "an ardent swain.”

In defining the element of forcible compulsion with respect to each of the charged sexual offenses, County Court instructed the jury on both statutory definitions — that is, the court instructed the jury that forcible compulsion was established either by proof of compulsion by physical force, or by proof of compulsion by express or implied threats. Defense counsel objected to any charge that the jury could consider express or implied threats, but the court gave no additional instruction on the point.

The jury found defendant guilty on all counts. The Appellate Division majority concluded, however, that the reference in the charge to express or implied threats constituted an impermissible change in the theory of prosecution, and reversible error.

People v Roberts

Defendant Paul Roberts was indicted for manslaughter in the first degree and grand larceny in the second degree, in connection with the death of Blanche Mironov. Upon his arrest, he was charged with felony murder. Defendant waived immunity, and testified in the Grand Jury that, as he was driving the 68-year-old woman home to Mount Vernon from Fallsburg in his taxi, she became disoriented and agitated, and in hysterical rage began screaming and hitting at him from the back seat. Defendant testified that he struck her once with his fist when his taxi began to swerve out of control on the highway, knocking her unconscious. When he realized she might be dead, he claimed that he panicked, drove back to Sullivan County, buried her body and disposed of her belongings. After defendant’s testimony, the Grand Jury voted a manslaughter indictment. The indictment specifically alleged that "defendant, with intent to cause serious physical injury, did strike Blanche Mironov in the neck area causing her death”. The discovery material later provided to defendant also stated that he had "struck” Mironov. While the answers to discovery were subsequently amended, this remained unchanged.

At trial, the prosecutor read defendant’s Grand Jury testimony, as well as earlier and significantly different exculpatory statements he had made to the effect that Mironov had left his cab — alive—in Westchester, and had gotten into a blue van driven by a man and a woman who appeared to be her acquaintances. The key evidence at trial was extensive medical testimony. Both of the People’s expert medical witnesses— the doctor who performed Mironov’s autopsy and the County Coroner — testified that the cause of Mironov’s death was, as the autopsy report stated, "Asphyxia by Traumatic compression of Neck.” This resulted, according to the doctors, from a fracture of Mironov’s hyoid bone, a small bone located, at the base of the tongue. The doctors testified that because the hyoid bone is flexible and sits in a well-protected position, only deliberate strangulation or an unusually accurate and forceful blow, such as a karate chop, could break it; they also opined that it was all but impossible that a single blow with a fist or elbow could have caused both the hyoid bone fracture and the broken nose Mironov sustained. The doctors maintained, over defendant’s objection to this testimony, that it was virtually certain that Mironov’s hyoid bone was not broken by a blow, but fractured when her assailant strangled her. Defendant’s request for a continuance so that he could prepare to rebut this expert testimony was denied.

In summation, the prosecutor argued that the medical evidence proved that Mironov’s death was caused when defendant intentionally strangled her. The jury convicted defendant on both the manslaughter and grand larceny counts. The Appellate Division reversed defendant’s manslaughter conviction, concluding that the People’s trial theory of intentional strangulation was inconsistent with the Grand Jury’s determination that defendant intended only to cause serious physical injury to Mironov when he struck her.

Discussion

Our analysis begins with the State constitutional provision 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; see also, CPL 210.05.) The Constitution further provides that an accused "shall be informed of the nature and cause of the accusation.” (Id.; see also, CPL 200.50.)

An indictment serves three important purposes. "First and foremost, an indictment * * * provid[es] the defendant with fair notice of the accusations against him, so that he will be able to prepare a defense.” (People v Iannone, 45 NY2d 589, 594.) Second, the indictment prevents the prosecutor from usurping the powers of the Grand Jury by ensuring that the crime for which defendant is tried is the same crime for which he was indicted, "rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence”. (Id.; see also, Russell v United States, 369 US 749, 770.) Finally, an indictment prevents later retrials for the same offense in contravention of the constitutional prohibition against double jeopardy (People v Iannone, supra, at 595).

Proof at trial that varies from the indictment potentially compromises two of the functions of the indictment — notice to the accused and the exclusive power of the Grand Jury to determine the charges. Where defendant’s right to fair notice of the charges or his right to have those charges preferred by the Grand Jury rather than by the prosecutor at trial has been violated, reversal is required. In Roberts, such a violation occurred; in Grega, it did not.

In Grega, the proof presented by the People at trial in fact did not vary from the allegations of the indictment. The indictment alleged that defendant had committed the charged sex offenses through the use of physical force, and defendant’s use of physical force was precisely what the complainant described in her testimony. Thus, defendant was not deprived of fair notice of what the People would attempt to prove.

Nor, under the circumstances of this case, was defendant deprived of the right to be tried on the charges determined by the Grand Jury to be appropriate. Had there been evidence from which the trial jury could have concluded that defendant accomplished his crimes through the use of express or implied threats that overcame the complainant’s will, then the court’s instructions — which permitted the jury to consider that uncharged theory — might well have violated defendant’s right to be tried only for crimes with which the Grand Jury had charged him (see, People v Kaminski, 58 NY2d 886). However, there was no such evidence. Since the victim was handcuffed and tied to defendant’s bed, according to her testimony, defendant could not have committed his crimes through the use of implied threats, but only by the physical force he employed to prevent her escape. Defendant’s testimony, similarly, was devoid of evidence of threats, for he testified that the complainant desired and freely consented to his acts. Thus, unlike Kaminski, here the jury’s guilty verdict could only have been based on the evidence of actual physical force as charged in the indictment.

While the trial court should not have charged both statutory definitions of forcible compulsion, but instead should have tailored its instructions to the case before it, on this record we conclude that the additional portion of the charge had no potential for prejudicing defendant, and thus was harmless error (see, People v Smalls, 55 NY2d 407, 416-417). Defendant was in fact tried and convicted of only those crimes and theories charged in the indictment.

By contrast, in Roberts the People’s presentation of proof at trial, which contradicted the factual allegations of the manslaughter count of the indictment as to the cause of death, violated the constitutional and statutory requirements that an indictment provide fair notice in order to permit the preparation of a defense.

The People argue that the method whereby death is caused is not an essential element of the crime of manslaughter. Relying on cases holding that the People do not need to prove allegations in an indictment that are extraneous to the material elements of the offense charged, they contend that they were free to present evidence of the cause of death that varied from the cause stated in the indictment.

It is true that when an indictment alleges facts that are extraneous or immaterial to the charges or beyond what is necessary to support the charges, or when factual allegations are made in the alternative, the People need not prove more than those factual allegations necessary to support a conviction (see, People v Charles, 61 NY2d 321; People v Rooney, 57 NY2d 822). However, that line of authority does not support the quite different proposition now urged by the People — that when the indictment specifies a set of facts supporting a material element of the crime charged, the People at trial are at liberty to present evidence that affirmatively disproves it.

Nor is the contention well founded that the particular factual allegations now in issue — that defendant with intent to cause serious injury struck Mironov, causing her death— were in this case extraneous.

The method employed to bring about death is not an "element” of manslaughter, but the People cannot omit all description of defendant’s actions. To the contrary, the Legislature has specified that every indictment must contain "[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 [7] [a].) While an indictment may not be jurisdictionally deficient for failure to allege such facts (People v Iannone, 45 NY2d 599, supra), at a minimum those facts would have to be provided if requested in a bill of particulars. Thus, though not an element of the crime, a description of the conduct that resulted in the victim’s death cannot be said, under CPL 200.50 (7) (a), to be extraneous to the material elements of the crime, and the People were bound to provide such factual allegations.

Here, the People chose to include the cause of death in the indictment and to repeat that allegation in their answer to discovery. Having specified in the indictment, and later in their answer to discovery, that defendant struck the victim, thereby causing her death, the People were not then free to present proof at trial that virtually ruled out that theory as the cause of death and substituted another one (see, People v Shealy, 51 NY2d 933; People v Barnes, 50 NY2d 375, 379, n 3 [the People are not required to specify in a burglary indictment what crime defendant inténded to commit but, if it is specified, they must prove that crime, not a different one]).

Reliance on People v Spann (56 NY2d 469) is misplaced. In Spann, the defendant himself voluntarily took the stand and admitted that he had stolen property on the date and from the person specified in the indictment, but that the property taken was different from that alleged in the indictment. In that limited situation, where defendant could not complain that he was denied notice, we upheld the trial court’s constructive amendment of the indictment. We emphasized in particular that it was defendant’s own decision to admit the theft of different property that had injected that theory into the trial. (See also, People v Feldman, 50 NY2d 500, 504 [where defendant introduced proof that the sale was made to a different/person than alleged in the indictment].) Here, however, defendant cannot be said to have consented to the jury’s consideration of proof that contradicted the factual allegations of the indictment regarding the cause of death, for his Grand Jury testimony was — in contrast to the defendant’s statement in Spann — entirely consistent with the indictment.

This case differs from Spann and Feldman in another significant respect. In those cases, the proof introduced by the defendants was evidence of the same crime charged in the indictment. Here, while the crime alleged in the indictment was technically the same one for which defendant was tried, it is clear that the strangulation identified at trial by the People’s experts as the cause of death is evidence of murder, the very crime for which the Grand Jury had refused to indict defendant. Indeed, the prosecutor’s summation was devoted to a theory of intentional murder.

The prejudice to defendant resulting from that variance was manifest. Given that the conduct alleged in the indictment was consistent with defendant’s statements and Grand Jury testimony that he had struck the victim as she hit at him from the back seat, defendant at trial was unprepared to meet a case of deliberate strangulation.

The result we reach does not leave the People in an "impossible position,” as they argue. If the evidence before the Grand Jury tended to show that striking or strangulation, or both, was the cause of death, the indictment might have been framed accordingly. If a review of the evidence before the Grand Jury demonstrated that the use of the word "struck” was an error, the prosecutor might have moved, even at trial, upon notice to defendant, to amend the indictment (CPL 200.70; People v Heaton, 59 AD2d 704). If the prosecutor concluded only after obtaining the indictment that the trial evidence would conclusively demonstrate deliberate strangulation, a superseding indictment might have been appropriate (CPL 200.80). What is not permissible, however, is for the People to proceed as they did in this case — that is, simply to await trial to present evidence that proved a significantly different cause of death than that alleged in the indictment.

Nor does the result we reach reward "gamesmanship,” as the dissent asserts (dissenting opn, at 503, 504). The autopsy reported "Asphyxia by Traumatic compression of Neck” as the cause of death, which was consistent with compression caused by a heavy blow, and consistent with the indictment, the answers to discovery and the defense of justification. Defendant was surely entitled to rely on this record in preparing his defense. The evidence he encountered at trial — largely testimony of the People’s own expert medical witnesses that deliberate strangulation was the cause of death — left as his only chance of success cross-examination of this evidence or production of his own expert; however, his request for a continuance to do so was denied. On this record we cannot credit the assertion that defendant craftily chose to forego his defense in favor of the prospect of reversal and a new trial on appeal.

Having concluded that the "fair notice” purpose of the indictment was not satisfied here, we need not additionally consider the indictment’s independent purpose of preventing the prosecutor from usurping the exclusive powers of the Grand Jury.

Accordingly, in People v Grega, the order should be modified by reinstating the convictions reversed by the Appellate Division and the case remitted to the Appellate Division, Third Department, for consideration of the facts as to the reinstated convictions and, as so modified, affirmed. In People v Roberts, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(concurring in Grega and dissenting in Roberts). While I fully concur in Judge Kaye’s opinion to reinstate defendant Grega’s conviction, I must respectfully dissent from the majority affirmance of the vacatur of defendant Roberts’ conviction. I would reinstate his conviction, too.

The majority analysis essentially concludes that there was a prejudicial change in the prosecution theory from the indictment (striking the victim to death) to the proof at trial (strangling her to death). I disagree because Grega and Roberts, in my view, are decided inconsistently, not only when analyzed inter sese but especially when carefully evaluated under our governing line of precedents.

Up to now, our cases have neatly and fairly delineated a legally significant demarcation between changes of prosecution theory pertaining to the material elements of a crime as opposed to those which are characterized as factual facets of the criminal event. The result and rationale in Roberts blurs the sound and useful precedential differentiation.

The indictment at issue charged manslaughter in the first degree in that: "The defendant, PAUL RAY ROBERTS, in the afternoon hours of July 28, 1985, in the counties of Orange and/or Rockland and/or Westchester and/or Sullivan, State of New York, did knowingly, unlawfully and with intent to cause serious physical injury to another person, caused [sic] the death of such person, to wit: the defendant, PAUL RAY ROBERTS, while operating a taxi for W & M Taxi Service, did transport one BLANCHE MIRONOV from the Aladdin Hotel, Woodbourne, Sullivan County, New York, to a location in the vicinity of Mt. Vernon, Westchester County, New York, and that during the course of the trip, the defendant, with intent to cause serious physical injury, did strike BLANCHE MIRO-NOV in the neck area causing her death”.

Before trial, defendant Roberts’ counsel received the autopsy report showing a cause of death, "Asphyxia by Traumatic compression of Neck”, consistent with strangulation. Following the opening statements at trial, Roberts’ counsel conceded further knowledge of the evidence of death by strangulation derived from the Assistant District Attorney at a pretrial discovery conference. Despite this foreknowledge, defense counsel never requested a bill of particulars, but waited until the trial to argue the People should be precluded from presenting such evidence. The People retorted that they should be permitted to introduce such evidence because strangulation and striking are merely the mechanisms of death, not elements of the crime charged. The Trial Judge admitted the evidence of death by strangulation.

The traditional functions of the indictment instrument are to provide "the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense”; to "provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted”; and to serve as an indication of "just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes” (People v Iannone, 45 NY2d 589, 594, 595). However, these goals need not be secured only by resort to the four corners of an indictment, for to so hold would "encrust them with an aura of inflexible invulnerability” (id.). The majority beclouds the guiding clarity of Iannone by adding a new and seemingly overruling facet: "though not an element of the crime, a description of the conduct that resulted in the victim’s death cannot be said, under CPL 200.50 (7) (a), to be extraneous to the material elements of the crime” (majority opn, at 498). Moreover, it states the factual allegations are discoverable by bill of particulars. While this is absolutely true, defendant deliberately chose not to demand a bill of particulars in the face of advance knowledge of the strangulation evidence given to him by the prosecution.

Under CPL 200.50 (7), an indictment need only provide "[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”. Consequently, "[n]ot every fact mentioned in an indictment is essential to establish the defendant’s guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction” (People v Rooney, 57 NY2d 822, 823).

The majority departs in Roberts from the well-settled rule that an allegation contained in an indictment, which is not a material element of the crime charged, need not be proved and that a conviction based on facts at variance with such immaterial evidentiary allegations should not be overturned. Most directly apt in this regard, People v Spann (56 NY2d 469) compels reinstatement of Roberts’ conviction unless we have decided also to overrule the Spann analysis. In that case, the defendant was indicted for robbery in the third degree in that he forcibly stole "jewelry and lawful money.” At trial he testified that he in fact robbed only drugs. We upheld his conviction, finding that the indictment provided fair notice and that his conviction did not constitute an impermissible amendment of the indictment. The court reasoned that the defendant had notice that he was accused of forcibly stealing property from a particular victim on a given date and was otherwise informed pretrial of the location and the time of the robbery. Further, "[t]he particular nature of the property stolen is not, by statute, a material element of the crime of robbery” (People v Spann, 56 NY2d 469, 473, supra [emphasis supplied]). The distinction advanced by the majority that in Spann the crime charged and proved was the same but in Roberts they were only "technically the same” is a classical distinction without a difference.

If surprise be the test, defendant Spann was surely more startled by the turn of events in his conviction than defendant Roberts could possibly be, as he had plenty of advance notice as to what was to be expected as to the cause of death evidence and how he should defend against it. He chose to take a gamble and to hold what he hoped would turn out to be a trump card if he did not succeed in getting an acquittal before the jury. Having been fairly convicted, he should not now win on appeal by this strategy.

As Judge Cardozo so aptly stated in People v Schmidt (216 NY 324, 328-329, 340-342), even while affirming a capital conviction of a defendant who gambled with a feigned defense of mental disease and defect, where there was clear error in the instruction to the jury, "[t]he remedy and the one remedy available to a criminal who finds himself thus enmeshed in a trap of his own making, is not in the processes of courts or the machinery of law; it is by appeal to the clemency of the Governor” (id., at 329). "The law does not force its ministers of justice to abet a criminal project to set the law at naught” (id., at 341).

In People v Feldman (50 NY2d 500, 504), we upheld a conviction despite the fact that the indictment charged the sale of drugs to a different person from the one proven at trial, since "the corpus delicti of the crime charged was the transfer of a controlled substance * * * the person to whom that substance was transferred was immaterial”. Similarly, People v Charles teaches that where the wording of the indictment required proof of more than was required under the statute, the People were not bound and satisfaction of only the statutory elements did not constitute a change in the theory of prosecution (61 NY2d 321, 327-329; see also, People v Cunningham, 48 NY2d 938, 940; People v La Marca, 3 NY2d 452, 458-459 [where the date of the crime is not an element, proof "that the offense was committed at any time prior to the commencement of the prosecution * * * does not constitute a material variance” (emphasis supplied)]).

The "material element” line of cases is best illustrated by the contrasting resolution of People v Kaminski (58 NY2d 886), where we reversed a sodomy conviction based upon a change in the theory of prosecution because the indictment alleged forcible compulsion by physical force, but the trial court charged in the alternative that forcible compulsion could be shown on a threats basis and the latter theory was supported by the evidence (compare also, People v Grega, [decided today]; see also, People v Barnes, 50 NY2d 375, 379, n 3). In Kaminski, forcible compulsion was a material element of the sodomy offenses; on the other hand, in Spann and cases of its genre, the pivot upholding the convictions centered on a change only of an evidentiary aspect. Roberts squares with the latter line.

The indictment in Roberts charged manslaughter in the first degree in that on the afternoon of a specified date, in one of four specified counties, along a particular route, Roberts did "knowingly, unlawfully and with intent to cause serious physical injury to another person, caused [sic] the death of’ Blanche Mironov. The very specific and unnecessary evidentiary allegations also added that the mechanism of death was a strike to the neck of the victim. The People proved every material element of the indictment along with all of the surplus evidentiary allegations, with the sole exception of the addition or substitution of strangulation as the mechanism of death. There can be no dispute that the crime charged is manslaughter in the first degree — whether by striking or strangulation or both, with intent to cause serious physical injury — not murder as the majority characterizes it. Manslaughter in the first degree was also the crime upon which Roberts was tried. Nor can it be denied that he had fair advance notice of the material elements of that crime. Similarly, he cannot validly claim surprise or unfairness in this respect, as his counsel was informed pretrial and given official documentary proof that the mechanism of death may have been strangulation. Insofar as the mechanism of death is an indictment allegation of an evidentiary nature and not a material element of the crime charged, manslaughter in the first degree, it did not have to be proven in that precise form to sustain this conviction.

In sum, my disagreement with the majority in the Roberts case rests on these firm pillars:

(1) the People v Spann (56 NY2d 469, supra) and People v Iannone (45 NY2d 589, supra) precedents which I believe are undermined by the Roberts majority holding;
(2) the material element versus evidentiary factor distinction, which has a well-settled legal and analytical validity but which is now blurred by the majority;
(3) the analysis and precedents applied in Grega which should produce a consistent result in Roberts decided simultaneously and ironically in a single opinion; and
(4) the unacceptability of encouraging strategic gamesmanship in criminal trials by defendants laying back with knowledge and benefiting from a candidly conceded drafting mistake by the District Attorney on behalf of the Grand Jury involving only an evidentiary aspect of the case.

Accordingly, fairness, precedents and sound analysis support my vote to reinstate the vacated convictions in both cases.

In People v Grega: Order modified and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur with Judge Kaye; Judge Bellacosa concurs in a separate opinion in which Chief Judge Wachtler also concurs.

In People v Roberts: Order affirmed.

Judges Simons, Alexander, Titone and Hancock, Jr., concur with Judge Kaye; Judge Bellacosa dissents and votes to reverse in a separate opinion in which Chief Judge Wachtler concurs. 
      
      . While defendant urges, as a separate ground for affirmance, that the court erroneously refused his request to charge justification (Penal Law § 35.15), we need not and do not reach this issue.
     
      
      . On his cross appeal, defendant asserts that the merger doctrine requires that his conviction for unlawful imprisonment be set aside. Inasmuch as defendant’s general motions for a trial order of dismissal failed to make any reference to this theory, defendant’s claim is unpreserved (People v Bynum, 70 NY2d 858).
     
      
      . As defense counsel pointed out to the trial court, he made no request for a bill of particulars because the indictment itself was so particularized; it did not need to be, but it was.
     